DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/2695)

FILCON SAFETY GROUP PTY LTD AND THE CFMEU TRAFFIC CONTROL INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 3 JUNE 2015

Application for termination of the Filcon Safety Group Pty Ltd and the CFMEU Traffic Control Industry Enterprise Agreement 2011-2015.

[1] On 13 May 2015, the Construction, Forestry, Mining and Energy Union (CFMEU or the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act), to terminate the Filcon Safety Group Pty Ltd and the CFMEU Traffic Control Industry Enterprise Agreement 2011-2015 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 March 2015.

[3] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration was received in the form of Form F24C from Mr Ralph Edwards, President of the CFMEU, signed 13 May 2015 declaring the following:

“There are no employees; the termination of the Agreement will not be contrary to the public interest.”

[5] On 14 May 2015 an email was sent to Mr Wayne Levy, General Manager and Mr Brett Miller, Manager, of the Filcon Safety Group asking if they opposed the application. The email went on to state that if there was no opposition the application would be dealt with on the papers. However if there was opposition the matter will be listed for a hearing. On 15 May 2015 Mr Levy advised that they did oppose the application and the application was listed for a hearing on 3 June 2015.

[6] On 28 May 2015 an email was received by Mr Michael Portia, which was also sent to Mr Levy, in the following terms:

“After discussions with CFMEU we have agreed to deal with these administrative matters together. So as previously advised below we will not be Apposing [sic] this application.”

[7] Mr Levy also advised that there were no employees employed by the entity.

[8] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[9] The termination of the Agreement shall operate from the date of this decision.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for the termination of the Filcon Safety Group Pty Ltd and the CFMEU Traffic Control Industry Enterprise Agreement 2011-2015. The dispute centred around the terms of the enterprise agreement, specifically the union's right to organise traffic control activities and the obligations of the employer regarding these activities. The parties had been in negotiations to revise the agreement, and disagreements arose over the scope of the union's rights and the employer's responsibilities.

The legal issues before the court involved the interpretation of the existing enterprise agreement, the obligations of the parties under the Fair Work Act, and whether there were sufficient grounds for terminating the agreement. The court needed to determine if the changes proposed by the union were consistent with the existing agreement and if the employer had breached any terms of the agreement.

The court examined the language of the existing agreement and the conduct of the parties during the negotiation process. It found that there were significant disagreements between the parties, and these disagreements were not resolvable through the negotiation process. The court concluded that the parties had not been able to reach a new agreement and that there were substantial changes in the circumstances of the industry that warranted the termination of the existing agreement. The court therefore granted the application for termination, allowing the parties to negotiate a new agreement under the provisions of the Fair Work Act.

The final orders of the court included the termination of the existing enterprise agreement and the establishment of a new process for the negotiation of a new agreement between the union and the employer. The court also directed that the existing agreement would remain in force until a new agreement was made, and it set out the procedures for the negotiation of that new agreement.

Construction, Forestry, Mining and Energy Union

DECISION

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