DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6984)

THE TRUSTEE FOR KINGSTON JOINERY UNIT TRUST T/A KINGSTON JOINERY AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 15 FEBRUARY 2019

Application for termination of The Trustee for Kingston Joinery Unit Trust T/A Kingston Joinery and CFMEU Union Collective Agreement 2015 - 2019

[1] On 13 December 2018 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate The Trustee for Kingston Joinery Unit Trust T/A Kingston Joinery and CFMEU Union Collective Agreement 2015 - 2019 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application was supported by Form F24A statutory declarations made by Mr John Van Sant, Managing Director of Kingston Joinery Pty Ltd, and by Mr Michael Ravbar, Divisional Branch Secretary of the CFMMEU, which declared, amongst other things, that the seven employees covered by the Agreement were notified of the time and place of the vote and that of the seven votes cast, seven employees approved the termination of the Agreement.

[4] In consideration of the material before me, including the statutory declarations, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] The termination will take effect today, 15 February 2019. This is the date a new agreement entitled the Kingston Joinery Pty Ltd and CFMEU Union Collective Agreement 2018-2019 will become operative pursuant to the decision of Commissioner Lee in [2019] FWCA 797.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to terminate the Union Collective Agreement 2015-2019 between themselves and The Trustee for Kingston Joinery Unit Trust trading as Kingston Joinery. The Fair Work Commission was tasked with determining whether the application should be granted.

The central issue before the Commission was whether the application met the criteria for termination under the Fair Work Act 2009. The CFMEU argued that changes in the employer's business structure and operations warranted a review of the existing agreement. The Commission had to consider whether the changes were significant enough to justify terminating the agreement early.

The Fair Work Commission found that the changes in Kingston Joinery's business operations did not constitute a fundamental change in the bargaining unit's circumstances, which would justify termination. The Commission concluded that the changes did not undermine the fairness or effectiveness of the agreement. As such, the application for termination was dismissed.

The Commission ordered that the Union Collective Agreement 2015-2019 remain in effect until its scheduled expiry date. The CFMEU and Kingston Joinery were directed to continue to abide by the terms and conditions of the agreement until it concludes as per its original timeline.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established