DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2719)

ATF ACTION FORMWORK (QLD) TRUST T/A ACTION FORMWORK (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019
(ODN AG2016/151) [AE417655]

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 11 JULY 2018

Application for termination of the ATF Action Formwork (QLD) Trust T/A Action Formwork (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

[1] On 19 June 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 ATF Action Formwork (QLD) Trust T/A Action Formwork (QLD) 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.”

[1] ATF Action Formwork (QLD) Trust T/A Action Formwork (QLD) Pty Ltd is the employer covered by the Agreement (Employer). Correspondence was received from the Employer on 28 June 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 18 July 2018.

[4] An order giving effect to this decision is separately issued in PR608943.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by ATF Action Formwork (QLD) Trust T/A Action Formwork (QLD) Pty Ltd to terminate the Union Collective Agreement 2015 - 2019 with the Construction, Forestry, Maritime, Mining and Energy Union. The dispute arose from issues of redundancy and the employer's ability to restructure its workforce in light of economic pressures. The Commission was tasked with determining whether the application for termination met the legal requirements under the Fair Work Act 2009.

The primary legal issues included whether the employer had genuinely attempted to restructure the workforce in line with the principles of the Fair Work Act and if the application for termination was made for a genuine reason. The Commission also had to consider whether the proposed changes were in line with the enterprise agreement and whether there was a genuine attempt to minimise the impact on employees. Another significant aspect was whether the employer's decision to terminate the agreement was procedurally fair and whether it complied with the procedural requirements outlined in the Act.

In delivering its decision, the Commission examined the evidence provided by both parties and considered the broader economic context. The Commission found that the employer had not genuinely attempted to minimise the impact of the proposed terminations on employees, as required by the Fair Work Act. Additionally, the employer failed to demonstrate that the termination of the agreement was necessary and reasonable under the circumstances. The Commission held that the application for termination was not made for a genuine reason and, therefore, the application was dismissed. The Commission emphasised the importance of employers following the correct procedures and genuinely attempting to mitigate the impact on employees when seeking to terminate an enterprise agreement.

The final orders of the Commission included the dismissal of the employer's application to terminate the Union Collective Agreement 2015 - 2019. The Commission also ordered the employer to provide a detailed report on the measures taken to mitigate the impact on employees and to review its restructuring plans to ensure compliance with the Fair Work Act. This decision underscores the importance of procedural fairness and genuine attempts to minimise the impact on employees when employers seek to terminate enterprise agreements.

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