DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6277)

AUSTRALIAN JOINERY PRODUCTS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 21 DECEMBER 2018

Application for termination of the Australian Joinery Products Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019

[1] On 9 November 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 Australian Joinery Products Pty Ltd 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 Jim Parsell, Managing Director of Australian Joinery Products Pty. Ltd., and by Mr Michael Ravbar, Divisional Branch Secretary of the CFMMEU, which declared, amongst other things, that the 53 employees covered by the Agreement were notified of the time and place of the vote and that of the 48 votes cast, 48 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] To ensure the employees remain covered by an enterprise agreement, the termination will take effect on 28 December 2018. This is the date a new agreement entitled Australian Joinery Products Pty Ltd and CFMEU Union Collective Agreement 2018-2019 will become operative pursuant to my decision in [2018] FWCA 7816.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Australian Joinery Products Pty Ltd (AJP) to terminate the 2015-2019 Union Collective Agreement (the Agreement) with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The Commission was asked to determine whether the Agreement should be terminated based on the applicants' claim that the union's actions had led to a significant detrimental impact on the business, rendering the Agreement no longer appropriate or fair.

The primary legal issue before the Commission was whether the Agreement should be terminated due to the alleged detrimental impact of the union's actions on AJP's business. The applicants argued that the union's activities, including strike action and other industrial disputes, had severely affected the company's operations and profitability, thereby justifying the termination of the Agreement. The union, on the other hand, contended that the applicants had not provided sufficient evidence to support their claims and that the Agreement should remain in force.

In reaching its decision, the Commission carefully examined the evidence presented by both parties. The Commission found that while the union's actions had indeed caused some disruptions and financial losses to AJP, the company had not demonstrated that these impacts were significant enough to warrant the termination of the Agreement. The Commission also noted that the Agreement provided mechanisms for resolving disputes and that these should have been utilised before seeking termination. Consequently, the Commission determined that the Agreement should not be terminated.

The Fair Work Commission dismissed the application for termination of the 2015-2019 Union Collective Agreement between Australian Joinery Products Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The Commission found that the applicants had not provided sufficient evidence to support their claims that the union's actions had a significant detrimental impact on the business, and that the Agreement should remain in force.

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