Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 6643

[2018] FWCA 6643

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/4827)

CREE8 COMMERCIAL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015-2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 20 NOVEMBER 2018

Application for termination of the Cree8 Commercial Pty Ltd and CFMEU Union Collective Agreement 2015-2019

[1] On 17 August 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 Cree8 Commercial 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 a statutory declaration made by Mr Michael Ravbar Divisional Branch Secretary of the CFMMEU which declared, amongst other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the votes cast and that of the 25 employees covered by the Agreement, all 25 of those employees voted to terminate the Agreement. Mr Ravbar’s statutory declaration stated that none of the employees covered by the Agreement fell within any of the demographic groups set out in Part 3.3 of the Form F24A statutory declaration.

[4] Upon further inquiries from my chambers, Mr Jason Meany, Director of Cree8 Commercial Pty Ltd, also submitted a Form F24A statutory declaration in support of the application, dated 31 October 2018. Mr Meany stated that at the date the vote of employees was taken, 25 employees were covered by the Agreement and all 25 of those employees approved the termination of the Agreement. However, Mr Meany’s statutory declaration included the correct number of employees covered by the Agreement that fell within any of the categories of demographic groups set out at Part 3.3 of the Form F24A statutory declaration.

[5] An amended Form F24A statutory declaration sworn by Mr Ravbar was also filed to chambers, dated 7 November 2018. Mr Ravbar’s amended statutory declaration confirmed Mr Meany’s declaration of the correct number of employees covered by the Agreement that fell within any of the categories of demographic groups set out at Part 3.3 of the Form F24A statutory declarations.

[6] 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.

[7] To ensure the employees remain covered by an enterprise agreement, the termination will take effect on 27 November 2018. This is the date a new agreement titled, Cree8 Commercial Pty Ltd and CFMEU Union Collective Agreement 2015-2019 will become operative pursuant to my decision in [2018] FWCA 6642.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE417323  PR701815>