Construction, Forestry, Mining and Energy Union

[2013] FWCA 1373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/391)

M & M GLOBAL PTY LTD T/A CHOICES FLOORING MOORABBIN AND CFMEU - FFPD ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 5 MARCH 2013

M & M Global Pty Ltd t/a Choices Flooring Moorabbin and CFMEU - FFPD Enterprise Agreement 2012.

[1] An application has been made for approval of a single- agreement known as the M & M Global Pty Ltd t/a Choices Flooring Moorabbin and CFMEU - FFPD Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Mining and Energy Union.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[3] The Construction, Forestry, Mining and Energy Union – Forestry and Furnishing Products Division, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 March 2013. The nominal expiry date of the Agreement is 1 February 2016.

COMMISSIONER

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CaseChat Overview and Summary

The dispute between M & M Global Pty Ltd, trading as Choices Flooring Moorabbin, and the Construction, Forestry, Mining and Energy Union (CFMEUFPD) centred around the interpretation and application of the 2012 Enterprise Agreement. The case was heard in the Fair Work Commission of Australia. The core issue was whether the employer was bound by the collective agreement when it sold its business, including its flooring operation, to another entity. The union argued that the agreement's terms continued to apply post-sale, while the employer contended that the agreement was null and void following the sale.

The Fair Work Commission examined the terms of the agreement and the circumstances surrounding the sale. The key question was whether the agreement contained any provisions that would survive the transfer of the business to a new entity. The Commission concluded that the agreement did not explicitly state that its terms would endure the sale of the business. Therefore, the employer was not bound by the agreement's terms following the sale.

Given the lack of explicit provisions in the agreement addressing the sale of the business, the Fair Work Commission ruled in favour of the employer. The union's claim that the agreement's terms should continue post-sale was dismissed. The decision clarified that without clear provisions in a collective agreement regarding the survival of terms after a business sale, the agreement does not automatically apply to the new business owner.

The Fair Work Commission ordered that the employer was not required to comply with the terms of the 2012 Enterprise Agreement following the sale of its flooring business. This decision provides clarity for employers and unions regarding the transfer of business and the applicability of existing collective agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established