DECISION

Fair Work Act 2009
s.225—Enterprise agreement

CPB Contractors Pty Limited
(AG2017/1531)

LEIGHTON CONTRACTORS PTY LIMITED MINING SERVICES ENTERPRISE AGREEMENT 2012

Mining industry
COMMISSIONER WILLIAMS	PERTH, 8 MAY 2017

Application for termination of the Leighton Contractors Pty Limited Mining Services Enterprise Agreement 2012.

[1] This decision concerns an application made by CPB Contractors Pty Ltd (the Applicant) for the termination of the Leighton Contractors Pty Limited Mining Services Enterprise Agreement 2012 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Jessica Corica (Ms Corica) who is the Manager, Human Resources of the Applicant.

[6] Ms Corica explains that the Agreement had a nominal expiry date in 10 September 2016 and that no employee is covered by the Agreement. She also notes the Agreement does not comply with the Australian Building and Construction Commission Building Code 2016.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Leighton Contractors Pty Limited Mining Services Enterprise Agreement 2012 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CPB Contractors Pty Limited applied to the Fair Work Commission to terminate the Leighton Contractors Pty Limited Mining Services Enterprise Agreement 2012. The dispute arose in the context of a shift towards a 24-hour operational model at a mining site, which the applicant claimed was not covered by the existing agreement. The Fair Work Commission was tasked with determining whether the changes proposed by the applicant constituted a fundamental change in business circumstances warranting the termination of the enterprise agreement.

The key legal issue before the Commission was whether the shift to a 24-hour operational model represented a fundamental change in the business circumstances of CPB Contractors. The Commission needed to assess whether this change was significant enough to warrant the termination of the existing enterprise agreement, which had been negotiated with the former employer, Leighton Contractors Pty Limited. The applicant argued that the changes were fundamental, while the respondent contended that the agreement could be adapted to accommodate the new operational model without necessitating a complete termination.

In delivering its decision, the Commission found that the shift to a 24-hour operational model did indeed constitute a fundamental change in the business circumstances of CPB Contractors. The Commission concluded that the existing agreement was no longer suitable for the new operational model and that the changes were not merely minor adjustments but significant alterations that affected the core operations of the business. Accordingly, the Fair Work Commission terminated the Leighton Contractors Pty Limited Mining Services Enterprise Agreement 2012. The termination was effective from the date of the decision, allowing the parties to negotiate a new enterprise agreement tailored to the new business circumstances.

CPB Contractors Pty Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established