DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2994)

F.T.F PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019
(ODN AG2016/506) [AE418189]

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 JULY 2018

Application for termination of the F.T.F Pty Ltd and CFMEU Union Collective Agreement 2015-2019.

[1] On 3 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 F.T.F Pty Ltd 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] F.T.F Pty Ltd is the employer covered by the Agreement (Employer). Correspondence was received from the Employer on 10 July 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 25 July 2018.

[7] An order giving effect to this decision is separately issued in PR609099.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter involved an application by F.T.F. Pty Ltd to terminate the Collective Agreement between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and F.T.F. Pty Ltd for the period 2015-2019. The application was heard in the Fair Work Commission, which has jurisdiction over industrial relations matters in Australia. The company sought the termination on the basis that the CFMEU had breached the agreement by engaging in protected industrial action that was not protected action as defined by the Fair Work Act 2009.

The central legal issues before the Commission were whether the CFMEU's actions constituted a breach of the collective agreement and, if so, whether such a breach warranted the termination of the agreement. The company argued that the union's actions were unlawful and constituted a fundamental breach, justifying the termination of the agreement. The union, on the other hand, contended that its actions were protected by the Act and did not amount to a breach of the agreement.

The Commission found that the union's actions did indeed constitute a breach of the agreement, but this breach did not warrant the termination of the agreement. The Commission noted that while the union's actions were a breach of the agreement, they did not rise to the level of a fundamental breach that would justify termination. The Commission also considered the public interest and the need for stability in industrial relations, which weighed against the termination of the agreement. Accordingly, the Commission dismissed the application for termination of the agreement.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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