Construction, Forestry, Mining and Energy Union

[2013] FWCA 4918

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
(AG2013/7408)

LAURIE & LINDA PEARSON T/A L & L CRANE HIRE AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 29 JULY 2013

Application for termination of the Laurie & Linda Pearson t/a L & L Crane Hire and CFMEU Union Collective Agreement 2011-2015.

[1] On 5 July 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 Laurie & Linda Pearson t/a L & L Crane Hire 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 Construction, Forestry, Mining and Energy Union (CFMEU) sought the termination of a collective agreement with Laurie & Linda Pearson trading as L & L Crane Hire. The matter was heard by the Fair Work Commission (FWC). The crux of the dispute centred on the validity and enforceability of the collective agreement entered into by the CFMEU and L & L Crane Hire, with specific contentions regarding whether there was a genuine agreement between the parties, and whether the agreement complied with the requisite statutory provisions under the Fair Work Act 2009.

The FWC examined the evidence presented by both parties to determine if there was a genuine negotiation and agreement between the CFMEU and L & L Crane Hire. It also assessed whether the collective agreement adhered to the legal requirements and was executed in good faith. The court had to consider the procedural aspects of the agreement formation, the compliance with statutory obligations, and the enforceability of the terms in light of the evidence provided.

In its decision, the FWC found that there was a genuine agreement between the parties, and that the collective agreement was valid and enforceable. The Commission noted that while there were procedural irregularities in the negotiation process, these did not invalidate the agreement as both parties had ultimately reached a consensus on the terms. The FWC concluded that the agreement complied with the statutory requirements under the Fair Work Act, and therefore dismissed the application for termination.

The FWC did not grant the application to terminate the collective agreement. The agreement remained in effect, binding both the CFMEU and L & L Crane Hire.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established