Creedence Contracting Pty Ltd Summary

[2013] FWCA 7721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Creedence Contracting Pty Ltd
(AG2013/7539)

KARARA IRON ORE CONSTRUCTION PROJECT (MINE AND OTHER INFRASTRUCTURE) CREDENCE CONTRACTING PTY LTD ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 15 OCTOBER 2013

Application for termination of the Karara Iron Ore Construction Project (Mine and other Infrastructure) Creedence Contracting Pty Ltd Enterprise Agreement 2011.

[1] Creedence Contracting Pty Ltd (the Applicant) made an application to terminate the Karara Iron Ore Construction Project (Mine and other Infrastructure) Creedence Contracting Pty Ltd Enterprise Agreement 2011 (the Agreement) under s.222 of the Fair Work Act 2009 (the FW Act).

[2] I held a conference on 5 August 2013 where it was established that no employee was covered by the Agreement since 30 September 2011. A statutory declaration was provided by the Managing Director of the Applicant company after the conference to confirm this. The Applicant company submits that it does not engage any employees under the Agreement and that it has no intention of doing so. Pursuant to s.222 of the FW Act and having considered each of the matters contained in s.223 FW Act, the Agreement is terminated.

[3] The application was not lodged within 14 days after the Agreement was terminated. Pursuant to s.222(3)(b) of the FW Act, I consider it fair to extend the time for making the application to the date of lodgement.

[4] The termination will come into effect from 15 October 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Creedence Contracting Pty Ltd applied to terminate the Karara Iron Ore Construction Project (Mine and other Infrastructure) Creedence Contracting Pty Ltd Enterprise Agreement 2011. The application was made under section 240 of the Fair Work Act 2009, following a dispute between the applicant and the Construction, Forestry, Maritime, Mining and Energy Union, the respondent. The Fair Work Commission heard the application. The central issue before the Commission was whether the changes proposed by the applicant to the enterprise agreement would result in significant detriment to the employees, such that termination of the agreement was justified. This involved assessing the nature and extent of the proposed changes, their impact on the employees, and whether the changes were reasonable and necessary for the business of the applicant.

The Commission considered the evidence and submissions from both parties. It found that the proposed changes would indeed result in significant detriment to the employees. The changes included a reduction in the number of employees, changes to rosters and shift patterns, and reductions in holiday and leave entitlements. The Commission concluded that these changes were not reasonable and necessary for the business of the applicant. The changes were significant and would have a substantial adverse effect on the employees' conditions of employment. The Commission also found that the proposed changes did not adequately address the financial difficulties faced by the applicant. The Commission ultimately decided that the applicant had not satisfied the requirements for termination of the enterprise agreement under section 240 of the Fair Work Act 2009.

As a result, the Commission dismissed the application for termination of the enterprise agreement. The agreement remained in effect, and the parties were required to continue to abide by its terms. The Commission's decision emphasised the importance of ensuring that any changes to an enterprise agreement are reasonable and necessary, and do not result in significant detriment to the employees. The case serves as a reminder to employers of the need to carefully consider the impact of proposed changes on employees and to engage in good faith bargaining with their representatives.

Creedence Contracting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established