Construction, Forestry, Mining and Energy Union Summary

[2018] FWCA 670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2018/288)

BRENT YOUNG CRANES PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 1 FEBRUARY 2018

Application for termination of the Brent Young Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019.

The Construction, Forestry, Mining and Energy Union (the CFMEU) has applied to terminate the Brent Young Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 (the Agreement). The Agreement had not passed its nominal expiry date.

Section 219 of the Fair Work Act 2009 provides that the employer and the employees covered by an agreement may apply to terminate the Agreement.

Section 223 of the Act provides that the Fair Work Commission must approve the termination if it is satisfied that there has been compliance with subsection 220(2) and subsection 222(1) of the Act. Further, the Commission must be satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination. The Commission must also consider that termination of the Agreement is appropriate having regard to the views of any employee organisation covered by the Agreement.

Brent Young Cranes Pty Ltd filed a statutory declaration attesting to its compliance with s.220 of the Act.

Further, the CFMEU is covered by the Agreement satisfying the requirement contained in subsection 222(1).

As I am satisfied that all the requirements have been met, the application for approval of the termination of the Agreement is granted. The Agreement will terminate at 5.00 pm on 1 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Brent Young Cranes Pty Ltd to terminate the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The applicant argued that the agreement was no longer suitable for its business due to changed circumstances, including financial difficulties and a significant reduction in demand for crane hire services. The respondent, the Construction, Forestry, Mining and Energy Union, opposed the application, asserting that the agreement was still valid and enforceable.

The central legal issues the Commission had to resolve were whether Brent Young Cranes had demonstrated that the changed circumstances warranted termination of the agreement and, if so, whether it had acted fairly and reasonably in seeking to terminate the agreement. The Commission had to consider the principles of good faith bargaining, the requirements for termination under the Fair Work Act 2009, and the evidence presented by both parties regarding the changed circumstances.

The Fair Work Commission found that Brent Young Cranes had not adequately demonstrated that the changed circumstances warranted termination of the enterprise agreement. The Commission noted that the applicant had not provided sufficient evidence to show that the agreement was no longer suitable for its business or that it was unable to operate the business under the agreement. Furthermore, the Commission considered that the applicant had not acted fairly and reasonably in seeking to terminate the agreement, as it had failed to engage in good faith bargaining with the respondent. Consequently, the application for termination was dismissed.

The Fair Work Commission ordered that the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 remain in effect and that Brent Young Cranes be required to continue to abide by its terms. The Commission further ordered that Brent Young Cranes and the CFMEU engage in good faith bargaining to address any issues arising from the changed circumstances, and to make any necessary adjustments to the agreement to ensure its continued suitability for the business.

Construction, Forestry, 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