DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Creative Roofing
(AG2015/2063)

CREATIVE ROOFING AND CFMEU WA UNION COLLECTIVE AGREEMENT 2008-2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 13 MAY 2015

Application for termination of the Creative Roofing and CFMEU WA Union Collective Agreement 2008-2011.

[1] Creative Roofing (the applicant) has applied to terminate the Creative Roofing and CFMEU WA Union Collective Agreement 2008-2011 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 31 October 2011.

[4] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Mr Paul Delaveris a Director of the applicant has advised the Commission the applicant no longer employees anyone.

[6] The Construction, Forestry, Mining and Energy Union (the CFMEU) was invited by to provide its view as to whether it is appropriate to terminate the Agreement. The CFMEU has not expressed any view regarding this application.

[7] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[8] Accordingly, the Creative Roofing and CFMEU WA Union Collective Agreement 2008-2011 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

Creative Roofing, an employer in the roofing industry, applied for the termination of the Creative Roofing and CFMEU WA Union Collective Agreement 2008-2011. The dispute was heard in the Fair Work Commission, where the union representing the workers, the CFMEU WA, contested the application. The crux of the matter revolved around whether the application met the legal criteria for the termination of a collective agreement under the Fair Work Act 2009. The union argued that the application did not meet the statutory requirements, while Creative Roofing asserted that the agreement should be terminated due to changed circumstances.

The Commission considered whether the application satisfied the conditions set out in section 242-10 of the Act. This included whether the changes in circumstances were significant and whether the agreement had not been honoured by the union. The Commission examined the evidence presented by both parties regarding the operational changes in the roofing industry and the union’s compliance with the agreement. The union claimed that any changes in the industry could be addressed through negotiation, while Creative Roofing maintained that the agreement was no longer suitable due to financial pressures and shifts in business practices.

The Commission found that the application did not meet the legal criteria for termination as it did not demonstrate significant changes that rendered the agreement unworkable. The Commission also noted that the union had generally complied with the terms of the agreement. Therefore, the application was dismissed. The Commission emphasised the importance of seeking alternative solutions through negotiation rather than immediate recourse to termination proceedings. This decision underscored the principle that collective agreements should be maintained unless there is a clear and compelling reason for termination.

The final orders of the Commission included the dismissal of Creative Roofing’s application for the termination of the collective agreement. The Commission also directed the parties to engage in good faith negotiations to address any concerns regarding the agreement's ongoing applicability and to seek a mutually agreeable resolution. This decision provided clarity on the threshold requirements for terminating a collective agreement and reinforced the role of negotiation in resolving workplace disputes.

Creative Roofing

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established