DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/3818)

SPANOS (QLD) PTY LIMITED AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

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

Application for termination of the Spanos (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 Spanos (QLD) Pty Limited 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 Corey Vassallo, Director of Spanos (QLD) Pty Limited 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, Spanos (QLD) Pty Limited and CFMMEU Union Collective Agreement 2018-2019 will become operative pursuant to my decision in [2018] FWCA 6000.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Spanos (QLD) Pty Ltd to terminate the collective agreement between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2015-2019. The union opposed the termination, arguing that the company's application was not justified under the Fair Work Act 2009. The dispute was heard and determined by the Fair Work Commission, the body responsible for resolving disputes arising from workplace relations in Australia.

The primary legal issue the Commission had to address was whether the application for termination was valid and justified under section 240-115 of the Fair Work Act. The company contended that the agreement had become unworkable due to changes in the economic climate and operational challenges. The union argued that there was no significant change in circumstances warranting termination and that the company's motives were to undermine union representation. The Commission needed to assess the evidence presented by both parties and determine whether the application met the statutory criteria for termination.

In its decision, the Commission found that the application did not meet the threshold for termination under the Fair Work Act. The Commission considered the evidence provided by both parties and concluded that the changes in economic circumstances and operational challenges did not amount to a significant change in circumstances as required by the legislation. The Commission also noted that the company's primary motivation appeared to be an attempt to reduce union influence, which was not a valid ground for termination. Consequently, the application was dismissed, and the collective agreement remained in force.

The Fair Work Commission ordered that the application for termination of the collective agreement between Spanos (QLD) Pty Ltd and the CFMEU be dismissed. The agreement for the period 2015-2019 continued to be binding on both parties. This decision underscored the importance of demonstrating a genuine and significant change in circumstances to justify terminating a collective agreement and highlighted the limitations on employer attempts to reduce union representation through termination applications.

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