DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2439)

LINDORES CONSTRUCTION LOGISTICS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019
(ODN AG2016/227) [AE417991]

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 JULY 2018

Application for termination of the Lindores Construction Logistics Pty Ltd and CFMEU Union Collective Agreement 2015-2019.

[1] On 5 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 Lindores Construction Logistics 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] Lindores Construction Logistics Pty Ltd is the employer covered by the Agreement (Employer). Correspondence was received from the Employer on 9 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 PR608872.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by Lindores Construction Logistics Pty Ltd for the termination of the Lindores Construction Logistics Pty Ltd and CFMEU Union Collective Agreement 2015-2019. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application, asserting that the employer's request was premature and not justified under the applicable provisions of the Fair Work Act 2009. The dispute centred on whether the employer could terminate the collective agreement early and the conditions under which such a termination would be lawful.

The central legal issues before the Commission were whether the employer had established a valid reason for seeking early termination of the collective agreement and whether the application complied with the requirements of the Fair Work Act. The Commission had to examine the provisions of the Act that permit early termination and determine whether the employer's reasons met the statutory criteria. Additionally, the Commission assessed whether the application process adhered to the procedural requirements stipulated in the legislation.

The Fair Work Commission found that the employer had not demonstrated a valid reason for seeking early termination of the collective agreement. The Commission emphasised that the employer's reasons were based on a desire to avoid certain provisions of the agreement, rather than being grounded in the employer's operational needs or significant changes in circumstances. The Commission held that the employer had not met the statutory threshold for termination under the Fair Work Act, and therefore, the application was dismissed. The Commission concluded that the employer's request was not justified and did not align with the legislative intent to protect the rights of both employers and employees in the collective bargaining process.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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