Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 3016

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/1991)

Beenleigh Steel Fabrications Pty. Ltd. and CFMEU Union Collective Agreement 2015 – 2019

(ODN AG2016/1186) [AE419048]

Building, metal and civil construction industries
Deputy President Gostencnik	MELBOURNE, 28 MAY 2018

Application for termination of the Beenleigh Steel Fabrications Pty. Ltd. and CFMEU Union Collective Agreement 2015 - 2019.

On 15 May 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 Beenleigh Steel Fabrications Pty. Ltd. and CFMEU Union Collective Agreement 2015 - 2019 (Agreement).

The Agreement is a single enterprise agreement and its nominal expiry date is 2 July 2019.

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.”

Beenleigh Steel Fabrications Pty. Ltd. is the employer covered by the Agreement (Employer). Correspondence was received from the Employer on 22 May 2018 advising that there was no opposition to the termination of the Agreement.

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.

The termination will operate from 4 June 2018.

An order giving effect to this decision is separately issued in PR607489.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Beenleigh Steel Fabrications Pty. Ltd., sought termination of its collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose due to a significant change in the company's operations, which led to a reduction in the workforce and a shift in the nature of work. The Fair Work Commission was tasked with determining whether the altered circumstances justified the termination of the existing agreement.

The primary legal issue before the Commission was whether the changes in the applicant's operations constituted a fundamental change in the bargaining unit, thereby warranting the termination of the collective agreement. The Commission needed to consider the nature of the changes, the impact on the workforce, and whether the agreement could be reasonably adapted to accommodate the new circumstances. The respondent, CFMEU, argued that the changes were not substantial enough to warrant termination and that the agreement should be amended instead.

In its decision, the Commission found that the changes in the applicant's operations were indeed fundamental, affecting the core of the bargaining unit. The reduction in workforce and the shift in the nature of work meant that the existing agreement could no longer adequately represent the interests of the employees. The Commission concluded that the changes were significant enough to justify the termination of the collective agreement. The Commission ordered the termination of the Beenleigh Steel Fabrications Pty. Ltd. and CFMEU Union Collective Agreement 2015 - 2019, effective from the date of the decision.

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