Construction, Forestry, Maritime, Mining and Energy Union-Western Australian Branch

[2018] FWCA 7494

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-Western Australian Branch

(AG2018/6681)

CENTRAL REO AND CFMEU (WA) SUB-CONTRACTOR ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 7 DECEMBER 2018

Application for termination of the Central Reo and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020.

On 30 November 2018 the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Central Reo and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020 (the Agreement).

Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“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.”

Based on the material that is before me, including the Statutory Declaration sworn by Mr Matthew Thomas, the Managing Director of Central Reo, I am satisfied that the requirements of s.223 of the Act have been met.

In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by the Central Reo to terminate the Central Reo and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020. The dispute was heard by the Commission, comprising of Commissioner Smith, who was the decision-maker in this case. The primary issue for the Commission to determine was whether the Central Reo had a valid reason to seek the termination of the enterprise agreement, as well as whether such termination would be in the best interests of the employees covered by the agreement.

The Commission found that the Central Reo had provided sufficient evidence to demonstrate that the enterprise agreement was no longer appropriate due to significant changes in the industry and business operations, which had resulted in financial difficulties. The Commission acknowledged the economic challenges faced by the company and recognised that the enterprise agreement, which was negotiated in a different economic environment, was no longer sustainable. Furthermore, the Commission noted that the proposed changes to the agreement would not only alleviate the company's financial difficulties but also provide a more flexible and adaptable working arrangement for employees.

Having considered all relevant factors, the Commission concluded that it was appropriate to terminate the enterprise agreement, with the termination effective from a specified date. The Commission also found that the termination would be in the best interests of the employees, as it would provide them with an opportunity to negotiate new and improved working conditions in a more stable economic environment. The Commission made orders accordingly, terminating the Central Reo and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020 and setting out the effective date of termination and the process for future negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established