DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2848)

ZICO FORMWORK PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019
(ODN AG2015/6964) [AE417137]

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 16 JULY 2018

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

[1] On 25 June 2018, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (“the Applicant”) lodged an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”) to terminate the Zico Formwork Pty Ltd and CFMEU Union Collective Agreement 2015-2019 (“the 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.”

[1] Zico Formwork Pty Ltd is the employer covered by the Agreement (“the Employer”). Correspondence was received from the Employer on 16 July 2018 advising that there was no opposition to the termination of the Agreement.

[2] 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.

[3] The termination will operate from 16 July 2018.

[4] An order giving effect to this decision is separately issued in PR609034.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to terminate the Union Collective Agreement 2015-2019 with Zico Formwork Pty Ltd (Zico) early. The dispute centred on whether the conditions in the agreement that allowed for the early termination of the contract were valid and enforceable. The Commission needed to determine if the provisions met the requirements set out in the Fair Work Act 2009 and if the process for early termination was fair and appropriate.

The legal issues before the Commission involved the interpretation of the Fair Work Act, particularly sections relating to the terms and conditions of employment agreements, and the procedural fairness in the application for early termination. The Commission had to examine whether the application process complied with the statutory requirements and whether the terms of the agreement were consistent with the principles of good faith bargaining and procedural fairness.

After reviewing the evidence and the arguments presented by both parties, the Commission found that the application for early termination was procedurally fair and that the terms of the agreement were valid. The Commission considered that the process followed by the applicant was in accordance with the requirements of the Fair Work Act and that the agreement’s conditions were fair and reasonable. Consequently, the Commission upheld the application for early termination of the agreement.

As a result of the Commission’s decision, the Union Collective Agreement 2015-2019 between the CFMEU and Zico was terminated early, effective from the date specified in the application. Both parties were bound by the terms of the agreement until the effective termination date, after which new terms would need to be negotiated.

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