DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/3823)

FORMWELL QLD PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 SEPTEMBER 2018

Application for termination of the Formwell (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

[1] On 14 August 2018, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Formwell QLD 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 declarations made by Andrew Macdougall, Manager of Formwell QLD Pty Ltd and by 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, a majority of the 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 3 October 2018. This is the date a new agreement titled, Formwell QLD Pty Ltd and CFMEU Union Collective Agreement 2018 - 2019 will become operative pursuant to my decision in [2018] FWCA 6022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought the termination of the Formwell (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019. The employer, Formwell (QLD) Pty Ltd, opposed the application. The dispute centered on whether the collective agreement had become inoperative due to significant changes in the employer's business, necessitating a new agreement.

The central legal issue before the Commission was whether the changes in Formwell's business operations warranted the termination of the existing collective agreement. The Union argued that the significant changes, including the closure of the employer's primary business and the cessation of its operations, rendered the agreement inoperative and required its termination. Conversely, the employer contended that despite the changes, the collective agreement remained valid and enforceable.

The Commission deliberated on the evidence presented regarding the extent and nature of the changes to Formwell's business. It considered the statutory criteria for determining whether a collective agreement has become inoperative. Ultimately, the Commission found that the significant changes in the employer's business operations justified the termination of the existing collective agreement. The changes were substantial and rendered the agreement inoperative, as it was no longer aligned with the current circumstances of the employer's operations.

Accordingly, the Commission granted the Union's application and terminated the Formwell (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019, effective from the date of the decision. This decision will have implications for the terms and conditions of employment for the affected employees, as a new collective agreement will need to be negotiated.

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