DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cubed CFC Pty Ltd
(AG2021/3955)

CUBED CFC PTY LTD AND THE CFMEU (VICTORIAN AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 18 MARCH 2021

Application for termination of the Cubed CFC Pty Ltd and the CFMEU (Victorian and general division) Enterprise Agreement 2016-2018.

[1] On 25 February 2021, Cubed CFC Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cubed CFC Pty Ltd and the CFMEU (Victorian and general division) Enterprise Agreement 2016-2018 (the Agreement).

[2] The Agreement had a nominal expiry date of 31 January 2019.

[3] The Act provides 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;

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.”

[4] The Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch (the CFMMEU) was requested to provide their views on the application on 26 February 2021 and 1 March 2021. On 2 March 2021, the CFMMEU indicated that they did not seek to be heard in opposition to the application.

[5] A Notice of Listing was issued on 3 March 2021, listing the matter for Non-Attendance Hearing on 10 March 2021 and directed interested parties to contact Chambers if they wished to be heard in the matter. The Applicant was directed to provide a copy of the Notice of Listing, application materials and statutory declaration to all employees affected by the application. The Applicant was also directed to email my Chambers to demonstrate how they complied with the directions issued.

[6] On 10 March 2021, my Chambers sent correspondence to the Applicant enquiring as to how they complied with the directions contained in the Notice of Listing. The Applicant indicated that they had not complied with the Directions. My Chambers advised the Applicant that the matter would be relisted for a further Non-Attendance Hearing.

[7] A second Notice of Listing was issued on 10 March 2021, listing the matter for Non-Attendance Hearing on 17 March 2021. On 12 March 2021, the Applicant sent an email to Chambers demonstrating their compliance with the directions.

[8] On 17 March 2021, no party requested to be heard in opposition to the application.

[9] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the requirements of s.226 of the Act, the Agreement is terminated.

[10] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves an application by the employer, Cubed CFC Pty Ltd, for termination of the Enterprise Agreement between the company and the CFMEU (Victorian and general division) for the period 2016-2018. The application was brought before the Fair Work Commission, which has the authority to make decisions regarding enterprise agreements under the Fair Work Act 2009. The union, CFMEU, contested the application, arguing that it was not in the best interests of the employees to terminate the agreement early.

The central legal issue before the Commission was whether the application should be granted and the Enterprise Agreement terminated early. The Commission considered whether the application met the criteria for termination under section 232 of the Fair Work Act, which allows for termination if there are changed circumstances that make the agreement unfair or unworkable. The Commission also had to consider the interests of the employees and whether terminating the agreement would negatively impact them.

The Fair Work Commission determined that the application should be dismissed. The Commission found that the changed circumstances did not justify termination of the agreement. The Commission emphasised that the decision should be made in the best interests of the employees, and terminating the agreement would not be in their best interests. The Commission concluded that the agreement could be modified to address the changed circumstances without terminating it entirely. The Commission ordered that the application for termination be dismissed and directed the parties to negotiate modifications to the agreement to address the changed circumstances.

The Fair Work Commission's decision highlights the importance of considering the interests of employees when making decisions about enterprise agreements. The Commission found that terminating the agreement would not be in the best interests of the employees and directed the parties to negotiate modifications to the agreement instead. This decision provides guidance for employers and unions when dealing with changed circumstances and seeking to modify or terminate enterprise agreements.

Cubed CFC Pty Ltd

DECISION

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Legal Principle Established