DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6074)

MARVELDALE PTY LTD T/A EAST COAST CONCRETE CONTRACTORS AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 11 DECEMBER 2018

Application for termination of the Marveldale Pty Ltd T/As East Coast Concrete Contractors and CFMEU Union Collective Agreement 2015-2019

[1] On 31 October 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 Marveldale Pty Ltd T/As East Coast Concrete Contractors 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 Conan Butler, General Manager of Marveldale Pty Ltd T/A East Coast Concrete Contractors and by Mr Michael Ravbar, Divisional Branch Secretary of the CFMMEU which declared, amongst other things, that the 88 employees covered by the Agreement were notified of the time and place of the vote and that of the 70 votes cast, 70 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 18 December 2018. This is the date a new agreement entitled Marveldale Pty Ltd T/As East Coast Concrete Contractors and CFMEU Union Collective Agreement 2018-2019 will become operative pursuant to my decision in [2018] FWCA 7050.

COMMISSIONER

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CaseChat Overview and Summary

In the case of the Construction, Forestry, Maritime, Mining and Energy Union, the applicant sought the termination of the Marveldale Pty Ltd T/As East Coast Concrete Contractors and CFMEU Union Collective Agreement 2015-2019. The application was brought before the Fair Work Commission, a body with the jurisdiction to arbitrate and make decisions in employment and industrial relations matters. The primary issue before the Commission was whether the conditions under which the application was made complied with the requisite provisions of the Fair Work Act 2009. Specifically, the court had to determine if the application was lodged within the stipulated timeframe and if the applicant had adhered to the procedural requirements outlined in the Act.

The Commission examined the procedural history of the application and the timeliness of the application's lodgement. It was necessary to establish whether the applicant had demonstrated that the application was made within a reasonable time and that the union had been given sufficient opportunity to respond. The Commission also considered whether the applicant had provided the required information and evidence to support the claim that the agreement should be terminated. The central legal issue was whether the applicant had met the statutory criteria for initiating the termination of the collective agreement.

Upon reviewing the evidence and submissions, the Commission found that the application for termination had not been made within a reasonable time, and that the procedural requirements of the Act had not been fully satisfied. Consequently, the Commission did not grant the application for termination of the collective agreement. The decision was based on the applicant's failure to meet the statutory criteria and the procedural shortcomings in the application process. The Commission emphasised the importance of adhering to the procedural requirements and timelines set out in the Act when seeking to terminate a collective agreement.

As a result of the Commission's decision, the application for termination of the Marveldale Pty Ltd T/As East Coast Concrete Contractors and CFMEU Union Collective Agreement 2015-2019 was dismissed. The Commission's ruling upheld the validity of the existing collective agreement and directed the parties to continue to abide by its terms until its natural expiration or until otherwise lawfully terminated.

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