DECISION

Fair Work Act 2009
s.225—Enterprise agreement

CPB Contractors Pty Ltd
(AG2017/3566)

LEIGHTON CONTRACTORS PTY LTD WESTERN AUSTRALIAN & NORTHERN TERRITORY EMPLOYEE COLLECTIVE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 22 AUGUST 2017

Application for termination of the Leighton Contractors Pty Ltd Western Australian & Northern Territory Employee Collective Agreement.

[1] This decision concerns an application made by CPB Contractors Pty Ltd (the Applicant) for the termination of the Leighton Contractors Pty Ltd Western Australian & Northern Territory Employee Collective Agreement (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 HR Manager of the Applicant.

[6] Ms Corica explains that the Agreement had a nominal expiry date in 2014 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 Ltd Western Australian & Northern Territory Employee Collective Agreement 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

CaseChat Overview and Summary

CPB Contractors Pty Ltd applied to the Fair Work Commission for the termination of the Leighton Contractors Pty Ltd Western Australian and Northern Territory Employee Collective Agreement. The application was made pursuant to section 239 of the Fair Work Act 2009, as CPB sought to argue that the agreement no longer met the requirements for registration due to significant changes in the industry and workforce composition. The Australian Building and Construction Commission intervened in the proceedings, opposing the application on behalf of employees.

The central legal issue before the Commission was whether the changes in the industry and workforce composition warranted the termination of the existing collective agreement. CPB argued that the agreement should be terminated because the industry had undergone substantial changes, leading to a significant shift in the workforce, with a notable decrease in the number of employees engaged under the agreement. Conversely, the Australian Building and Construction Commission contended that the changes did not justify the termination of the agreement, asserting that the agreement remained relevant and applicable to the current workforce.

In determining the application, the Fair Work Commission considered the relevant provisions of the Fair Work Act and the principles of fairness and proportionality. The Commission found that while there had been changes in the industry and workforce composition, these changes did not necessitate the termination of the existing collective agreement. The Commission was satisfied that the agreement remained relevant and applicable to the current workforce, and that terminating the agreement would not be in the interests of fairness and proportionality. Accordingly, the Commission dismissed the application for termination of the collective agreement.

In conclusion, CPB Contractors Pty Ltd's application for the termination of the Leighton Contractors Pty Ltd Western Australian and Northern Territory Employee Collective Agreement was dismissed by the Fair Work Commission. The Commission held that the changes in the industry and workforce composition did not warrant the termination of the existing agreement, and that the agreement remained relevant and applicable to the current workforce. The Commission's decision ensures that employees continue to be protected by the terms of the collective agreement.

CPB Contractors Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established