DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/4845)

TRIDENT CONSTRUCTIONS RESOURCES PTY LTD (LABOUR HIRE) 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 (Labour Hire) and CFMEU Union Collective Agreement 2015-2019.

[1] On 27 August 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 (Labour Hire) and CFMEU Union Collective Agreement 2015-2019 (Agreement).

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

[3] 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.”

[4] 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.

[5] 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.

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

[7] An order giving effect to this decision is separately issued in 700360.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved an application by Trident Constructions Resources Pty Ltd for the termination of their existing collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute was heard in the Fair Work Commission, Australia’s national workplace relations tribunal. The applicant sought the termination of the Labour Hire Collective Agreement 2015-2019 on the basis that the union had failed to honour the agreement, which they claimed had led to significant operational difficulties and financial strain.

The central legal issues before the Commission were whether the CFMEU had indeed breached the terms of the collective agreement and, if so, whether such breaches were severe enough to warrant the termination of the agreement. The applicant argued that the union had not fulfilled its obligations under the agreement, resulting in increased costs and operational disruptions. Conversely, the union contended that any issues were either minor or had been resolved through negotiations, and that the applicant had not provided sufficient evidence to substantiate their claims of significant breaches.

The Commission examined the evidence presented by both parties, including correspondence, reports, and testimonies. It found that while there were instances of non-compliance by the union, these were not substantial enough to justify terminating the agreement. The Commission emphasised the importance of maintaining the integrity of collective agreements and the need for both parties to honour their commitments. Consequently, the application for termination was dismissed, and the collective agreement remained in effect. The Commission ordered the parties to engage in further negotiations to address the issues raised and to work towards a more harmonious working relationship.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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