Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/12066)

TAF INTERNAL LININGS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 16 JANUARY 2014

Application for termination of the Taf Internal Linings Pty Ltd and CFMEU union collective agreement 2011 - 2015.

[1] On 18 December 2013 the Construction, Forestry, Mining and Energy Union filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Taf Internal Linings Pty Ltd and CFMEU union collective agreement 2011 - 2015 (“the Agreement”).

[2] 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.

[3] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration provided by the employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission involved an application by Taf Internal Linings Pty Ltd for the termination of the collective agreement between the company and the Construction, Forestry, Mining and Energy Union. The disagreement centred on whether the union had acted in bad faith, leading to a breakdown in the negotiation of a new agreement. The Fair Work Commission was the court in which this application was heard.

The central legal issues addressed by the Commission were whether the union had indeed acted in bad faith and, if so, whether this justified the termination of the existing collective agreement. The Commission examined the conduct of the union during negotiations and the implications of such conduct on the continuation of the agreement. It was necessary to determine the threshold for bad faith and whether the union's actions met this standard.

The Full Bench found that the union had acted in bad faith, but this did not meet the threshold for terminating the existing collective agreement. The Commission concluded that while the union's conduct was inappropriate, it did not amount to the kind of substantial and fundamental breach required to justify termination. The decision highlighted the importance of maintaining the stability of ongoing agreements unless there was clear evidence of significant misconduct. The Fair Work Commission upheld the existing collective agreement, emphasising the need for continued engagement between the parties.

No further orders were made by the Commission beyond the decision to maintain the existing collective agreement in place. The union and the company were directed to continue their negotiations in good faith, with the Commission's expectation that this would lead to the successful conclusion of a new agreement.

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