Construction, Forestry, Maritime, Mining and Energy Union Summary

[2018] FWCA 2630

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/1800)

Pro Concrete Pumping Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019

Building, metal and civil construction industries
Deputy President Masson	MELBOURNE, 11 MAY 2018

Application for termination of the Pro Concrete Pumping Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

On 3 May 2018, the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Pro Concrete Pumping Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019 (Agreement).

The Agreement is an 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.”

Pro Concrete Pumping Pty Ltd is the employer which is covered by the Agreement. Correspondence was received from Pro Concrete Pumping Pty Ltd on 9 May 2018 advising that there was no opposition to the termination of the Agreement.

Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant complied with s.220(2) of the Act in relation to termination of the agreement. 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 18 May 2018.

An order giving effect to this decision is separately issued in PR606982.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the court involved Pro Concrete Pumping Pty Ltd, a company in the construction industry, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a trade union representing employees in various sectors. The dispute centred around the termination of the Collective Agreement 2015 - 2019, which had been in place between the parties for the specified period. The case was heard in the Fair Work Commission of Australia.

The central legal issue that the court had to address was whether the employer, Pro Concrete Pumping Pty Ltd, had valid grounds to terminate the collective agreement prior to its scheduled end date. The employer argued that changes in the business environment, including financial difficulties and market conditions, necessitated an early termination of the agreement. The union, on the other hand, contended that the employer had not demonstrated sufficient grounds to justify the termination and that such a move would adversely affect the employees' rights and conditions of employment.

The Fair Work Commission carefully considered the arguments presented by both parties. The court examined the provisions of the existing collective agreement, the economic and operational circumstances of Pro Concrete Pumping Pty Ltd, and the implications of an early termination on the employees. Ultimately, the court found that the employer had not provided adequate evidence to support the need for an early termination of the agreement. The court emphasised the importance of protecting the rights and conditions of employees, particularly in situations where the employer's financial difficulties did not necessarily translate into grounds for terminating the collective agreement. Consequently, the application for termination was dismissed.

In its decision, the Fair Work Commission ordered that the Collective Agreement 2015 - 2019 between Pro Concrete Pumping Pty Ltd and the CFMEU would continue to be in effect until its scheduled end date. The employer was also required to continue adhering to the terms and conditions outlined in the agreement, and the union retained its rights to represent the employees under the agreement. This ruling reinforced the importance of maintaining fair and stable industrial relations between employers and employees in the construction industry.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established