DECISION

Fair Work Act 2009
s.225—Enterprise agreement

CSR Limited
(AG2018/81)

CSR LIMITED T/A VIRIDIAN NEW WORLD GLASS AND CFMEU (FFTS BRANCH) ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 29 JANUARY 2018

Application for termination of the CSR Limited t/a Viridian New World Glass and CFMEU (FFTS Branch) Enterprise Agreement 2011-2015.

[1] CSR Limites (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the CSR Limited t/a Viridian New World Glass and CFMEU (FFTS Branch) Enterprise Agreement 2011-2015 (the Agreement).

[2] The Agreement is expressed to cover the Applicant and the Construction, Forestry, Mining and Energy Union (the CFMEU).

[3] The Applicant advises that there are currently no employees covered by the Agreement.

[4] The Agreement has passed its nominal expiry date.

[5] Section 225 of the Act provides:

“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;

[6] Section 226 of the Act provides:

“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.”

[7] The CFMEU is an organisation which is covered by the Agreement.

[8] On 25 January 2018, the CFMEU advised that it did not oppose the application.

[9] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[10] The termination will operate from 29 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CSR Limited sought to terminate the Enterprise Agreement between CSR Limited trading as Viridian New World Glass and the Construction, Forestry, Maritime, Mining and Energy Union (FFTS Branch). The application was heard in the Fair Work Commission, and the dispute involved the validity of the termination and the implications under the Fair Work Act 2009. The primary legal issue before the Commission was whether CSR Limited had followed the correct process for terminating the Enterprise Agreement and if the termination was justified under the statutory provisions. The Commission examined whether CSR Limited had provided the required 90 days' notice to terminate the agreement and whether there were legitimate reasons for the termination as stipulated in the Act.

The Fair Work Commission found that CSR Limited had indeed provided the necessary notice period as per the Fair Work Act. However, the Commission also considered whether the termination was made for a legitimate reason, which includes situations where an employer believes the agreement has become unworkable. The Commission held that while CSR Limited had provided adequate notice, the reasons for termination were not sufficiently justified under the Act. The decision hinged on whether the employer could demonstrate that the agreement had become unworkable due to changed circumstances, a matter the Commission found was not adequately substantiated by CSR Limited.

Consequently, the Commission ruled that the termination was not valid and reinstated the Enterprise Agreement between CSR Limited and the CFMEU. The Fair Work Commission ordered that the Enterprise Agreement would remain in effect, and the parties were required to continue operating under its terms until a new agreement was reached or the existing one expired by its natural course. This decision underscored the importance of substantiating claims of unworkability and adhering to procedural requirements when seeking to terminate an enterprise agreement.

CSR Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established