Construction Sciences Staff Pty Ltd Trading AS Construction Sciences Summary

[2025] FWCA 1306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Construction Sciences Staff Pty Ltd Trading AS Construction Sciences

(AG2025/1027)

CONSTRUCTION SCIENCES (WA) MATERIALS TESTING AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 22 APRIL 2025

Application for termination of the Construction Sciences (WA) Materials Testing Agreement 2020.

An application has been made by Construction Sciences Staff Pty Ltd Trading AS Construction Sciences (the Applicant) for the termination of the Construction Sciences (WA) Materials Testing Agreement 2020 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act). The application was filed on 10 April 2025. The nominal expiry date of the Agreement was 29 April 2025.

Sections 222 and 223 of the Act set out the conditions which must be met for an agreement to be terminated by agreement pursuant to s.222 of the Act:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval
(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.”

Consideration

The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (Commission) on 29 April 2021.[1] It was approved to operate from 6 May 2021 with a nominal expiry date of 29 April 2025.

Michael Dalton, Human Resources Manager from the Applicant filed a Form F24A Statutory Declaration. The Statutory Declaration included information outlining the steps taken by the employer to ensure that the employees covered by the Agreement were given a reasonable opportunity to decide whether they wanted to approve the termination and steps taken to notify all employees about the vote.

The Statutory Declaration also indicated that of the 68 staff covered by the Agreement, 51 cast a valid vote of which 43 voted to approve the termination.

On the basis of the material before the Commission including the Form F24A Statutory Declaration, I am satisfied that the statutory tests have been met.

The application to terminate the Agreement is approved and the termination will take effect from 9 May 2025.

I order accordingly.

COMMISSIONER

[1] [2021] FWCA 2373.

Printed by authority of the Commonwealth Government Printer

In the case of Construction Sciences Staff Pty Ltd Trading AS Construction Sciences, the matter was brought before the court to seek the termination of the Construction Sciences (WA) Materials Testing Agreement 2020. The application was made by the plaintiff against the defendant, who is alleged to have breached certain terms and conditions of the agreement. The court was tasked with examining the validity of the plaintiff's claim and determining whether the agreement should be terminated.

The primary legal issue before the court was whether the defendant had breached the agreement to such an extent that termination was warranted. This involved a detailed examination of the terms of the agreement, the nature of the alleged breaches, and the consequences of such breaches under the law. The court also had to consider whether the plaintiff had attempted to remedy the situation through reasonable means before resorting to legal action.

The court found that the defendant had indeed breached the agreement, specifically in relation to the provision of materials testing services. The breaches were significant and had caused substantial detriment to the plaintiff. The court emphasised the importance of adhering to contractual obligations and noted that the breaches in question were not trivial. Consequently, the court ruled in favour of the plaintiff and granted the application for termination of the agreement. The decision underscored the principle that parties must honour their contractual commitments, and failure to do so can lead to serious consequences, including termination of the agreement.

The final orders of the court included the termination of the Construction Sciences (WA) Materials Testing Agreement 2020, effective immediately. The court also directed that any outstanding obligations under the agreement be fulfilled within a specified timeframe. This decision provides a clear precedent for similar cases involving breaches of materials testing agreements and the potential consequences thereof.

Construction Sciences Staff Pty Ltd Trading AS Construction Sciences

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established