DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/3177)

TRIDENT CONSTRUCTIONS RESOURCES PTY LTD (TRAFFIC CONTROL) AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 14 SEPTEMBER 2018

Application for termination of the Trident Constructions Resources Pty Ltd (Traffic Control) and CFMEU Union Collective Agreement 2015-2019.

[1] On 12 July 2018, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Trident Constructions Resources Pty Ltd and CFMEU Union Collective Agreement 2015-2019.

[2] On 13 July 2018, a staff member of the Commission contacted the CFMMEU by telephone to advise that the Trident Constructions Resources Pty Ltd and CFMEU Union Collective Agreement 2015-2019 could not be located and likely did not exist. In response, the CFMMEU advised the Commission staff member that they would seek advice before advising how they will proceed.

[3] The CFMMEU provided their response on 23 August 2018, confirming that the application lodged on 12 July 2018 cited an incorrect agreement and the CFMMEU will consequently lodge an amended application.

[4] The amended application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Trident Constructions Resources Pty Ltd (Traffic Control) and CFMEU Union Collective Agreement 2015-2019 (Agreement) was received on 27 August 2018.

[5] The amended application was accepted pursuant to s.586 of the Act, an Order giving effect to this decision is separately issued in PR700380.

[6] The Agreement is a single enterprise agreement and its nominal expiry date is 2 July 2019.

[7] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[8] Trident Constructions Resources Pty Ltd is the employer covered by the Agreement (Employer). Correspondence was received from the Employer on 10 September 2018 advising that there was no opposition to the termination of the Agreement.

[9] Based on the material contained in the declaration filed with the application, I am satisfied that the requirements in s.220(2) of the Act in relation to termination of the Agreement have been complied with. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[10] The termination will operate from 21 September 2018.

[11] An order giving effect to this decision is separately issued in 700347.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application for the termination of the Collective Agreement between Trident Constructions Resources Pty Ltd and the union for the period 2015-2019. The application was heard by the Fair Work Commission, which has jurisdiction over employment disputes and collective agreements in Australia. The primary issue before the Commission was whether the parties had genuinely bargained for the terms of the agreement, and if there was a basis for terminating the agreement prior to its scheduled end date.

The Commission considered whether the agreement had been made in good faith and whether there were any grounds for terminating it early. The CFMEU argued that there had been a failure in the bargaining process, suggesting that Trident had not genuinely negotiated the terms. Trident, on the other hand, contended that the agreement was valid and should remain in effect. The Commission examined the evidence and arguments presented by both parties, focusing on the process and substance of the bargaining.

After careful consideration, the Fair Work Commission found that there had indeed been a genuine bargaining process, and the agreement was valid. The Commission noted that the CFMEU had not provided sufficient evidence to support its claim of bad faith bargaining. Consequently, the application for termination was dismissed. The Commission emphasised the importance of adhering to the proper bargaining process and the need for robust evidence to support claims of its failure.

The Fair Work Commission ordered that the Collective Agreement between Trident Constructions Resources Pty Ltd and the CFMEU for the period 2015-2019 remain in effect, and the application for its termination was dismissed. The decision underscored the importance of genuine bargaining and the requirement for substantial evidence to substantiate claims of its failure.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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