DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/3287)

NORTH AUSTRALIAN CONTRACTING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 JULY 2018

Application for termination of the North Australian Contracting Pty Ltd and CFMEU Union Collective Agreement 2015-2019.

[1] On 18 July 2018, the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) lodged an application pursuant to s 222 of the Fair Work Act 2009 (Act) to terminate the North Australian Contracting Pty Ltd and CFMEU Union Collective Agreement 2015-2019 (Agreement).

[2] The Agreement is an 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] North Australian Contracting Pty Ltd is the employer which is covered by the Agreement. Correspondence was received from North Australian Contracting Pty Ltd on 26 July 2018 advising that there was no opposition to the termination of the Agreement.

[5] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant complied with s 220(2) of the Act in relation to termination of the agreement. 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 6 August 2018.

[7] An order giving effect to this decision is separately issued in PR609503.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the termination of the North Australian Contracting Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union Collective Agreement 2015-2019. The applicant, North Australian Contracting Pty Ltd, sought to terminate the agreement early, citing significant changes in the operational landscape and economic conditions that rendered the existing terms and conditions of employment no longer fair and reasonable. The union, as the respondent, argued that the application should be dismissed as there were no substantial changes to warrant an early termination.

The primary legal issues the Commission had to address were whether there had been a material change in circumstances that justified the early termination of the agreement and whether such a change was significant enough to render the agreement no longer fair and reasonable. The Commission needed to consider the statutory framework under which the application was made, including relevant provisions of the Fair Work Act 2009, and assess the evidence provided by both parties regarding the economic and operational changes that had occurred.

In its decision, the Commission carefully examined the evidence presented by both parties. It found that while there had been some changes in the economic environment and operational practices, these did not constitute a material change in circumstances that would warrant the early termination of the collective agreement. The Commission held that the existing terms and conditions remained fair and reasonable for the parties involved. Consequently, the application for termination was dismissed. The Commission's decision underscored the importance of demonstrating substantial and specific changes to justify an early termination of a collective agreement under the Fair Work Act.

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