DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6695)

ATF SUPERIOR WALLS & CEILINGS (QLD) TRUST T/A SUPERIOR WALLS & CEILINGS (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 JANUARY 2019

Application for termination of the AFT Superior Walls & Ceilings (QLD) Trust T/A Superior Walls & Ceilings (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019.

[1] On 3 December 2018, the Construction, Forestry, Mining and Energy Union (the Applicant) lodged an application pursuant to s 222 of the Fair Work Act 2009 (Act) to terminate the ATF Superior Walls & Ceilings (QLD) Trust T/A Superior Walls & Ceilings (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019 (Agreement).

[2] A statutory declaration in support of the application to terminate the Agreement was also provided by Superior Walls and Ceilings (Qld) Pty Ltd (Superior Walls and Ceilings).

[3] The Agreement is a single enterprise agreement and its nominal expiry date is 2 July 2019.

[4] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[5] Based on the material contained in the statutory declarations filed by both the Applicant and Superior Walls and Ceilings attached to the application, I am satisfied that the requirements of s 220(2) of the Act in relation to termination of the Agreement have been complied with. Taking into account all of the circumstances including those in ss 222 and 223 of the Act, I am satisfied that it is appropriate to approve the termination of the Agreement, and I so terminate the Agreement.

[6] The termination will operate from 28 January 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of an application for termination of the AFT Superior Walls & Ceilings (QLD) Trust T/A Superior Walls & Ceilings (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019, the case was heard by the Fair Work Commission (FWC). The applicant, Superior Walls & Ceilings (QLD) Pty Ltd, sought to terminate the existing collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), arguing that changes in the economic environment and operational challenges warranted a re-evaluation of the agreement's terms. The CFMEU opposed the application, asserting that the agreement remained valid and should continue as per its original terms.

The legal issues before the Commission were whether the applicant had demonstrated exceptional circumstances justifying the early termination of the collective agreement and whether the agreement's terms were still suitable given the current operational context. The Commission had to balance the rights and obligations of both parties under the Fair Work Act 2009 and the principles of good faith bargaining. It also needed to consider the impact of any termination on the employees and the broader industry.

After evaluating the evidence and submissions from both parties, the FWC determined that the applicant had not demonstrated the exceptional circumstances necessary to justify early termination of the collective agreement. The Commission found that the existing agreement was still suitable for the operational context and did not warrant changes at this stage. The application was dismissed, and the collective agreement was to remain in effect until its scheduled expiration. The FWC emphasised the importance of maintaining stability in industrial relations and the need for parties to adhere to the terms of their agreements unless compelling reasons for change are clearly established.

The final orders of the Commission were that the application for termination of the collective agreement be dismissed, and the agreement remain in force until the end of its term. The applicant was directed to continue to comply with the terms of the agreement, and the respondent was similarly required to adhere to its obligations under the agreement.

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