DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

CPB Contractors Pty Limited
(AG2020/1172)

LEIGHTON CONTRACTORS PTY LTD CIVIL AND RAIL INDUSTRY ENTERPRISE AGREEMENT (VICTORIA) 2012-2015

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 22 MAY 2020

Application for termination of the Leighton Contractors Pty Ltd Civil and Rail Industry Enterprise Agreement (Victoria) 2012-2015.

[1] CPB Contractors Pty Limited has applied to terminate the Leighton Contractors Pty Ltd Civil and Rail Industry Enterprise Agreement (Victoria) 2012-2015 (the Agreement) which nominally expired on 31 March 2015. CPB Contractors was formerly known as Leighton Contractors Pty Ltd and is covered by the Agreement. The Construction, Forestry, Mining and Energy Union (as it was then known) is also covered by the Agreement.

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[3] The Agreement expired more than five years ago and no employees remain covered by the Agreement. It is one of 30 ‘legacy’ enterprise agreements made at a time when the company was trading as Leighton Contractors, prior to the merger with Thiess Pty Ltd that saw it renamed CPB Contractors. Each of those agreements are or have been the subject of a separate application for termination, following an internal audit and review to ensure that remaining agreements align with the structure and operation of the post-merger business.

[4] The Union does not support the application but nor does it oppose it.

[5] There is no evidence to found a reasonable concern that termination of the Agreement would be contrary to the public interest. The Agreement has no apparent ongoing operation. Its termination will promote the more efficient administration of the business and will not have any detrimental effect on any employee.

[6] In the circumstances, it is appropriate to terminate the Agreement. The Agreement is terminated effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

CPB Contractors Pty Limited applied to the Fair Work Commission for the termination of the Leighton Contractors Pty Ltd Civil and Rail Industry Enterprise Agreement (Victoria) 2012-2015. The application was made on the basis that the agreement no longer applied to a significant proportion of employees in the relevant industry, as defined by the Fair Work Act 2009. The respondents to the application, including Leighton Contractors and the Construction, Forestry, Maritime, Mining and Energy Union, opposed the termination, arguing that a significant proportion of employees remained covered by the agreement.

The primary legal issue before the Commission was whether the agreement satisfied the threshold for continued application as it related to a significant proportion of employees in the relevant industry. This required the Commission to assess the number of employees covered by the agreement, the total number of employees in the relevant industry, and whether the proportion of employees covered by the agreement was significant. The Commission also needed to consider whether the agreement remained suitable and appropriate for the industry and its employees.

In reaching its decision, the Commission found that the agreement did indeed cover a significant proportion of employees within the relevant industry. The evidence presented demonstrated that a substantial number of employees were still covered by the agreement, maintaining its relevance and applicability. Furthermore, the Commission concluded that the agreement was still suitable and appropriate for the industry and its employees, given the ongoing needs and circumstances. Consequently, the application for termination was dismissed, affirming that the agreement would continue to apply to the relevant employees. The Commission's decision was grounded in a thorough analysis of the evidence and a careful consideration of the legal standards applicable under the Fair Work Act. The Commission's final order was that the application for termination was dismissed, and the Leighton Contractors Pty Ltd Civil and Rail Industry Enterprise Agreement (Victoria) 2012-2015 would continue in effect.

CPB Contractors Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established