DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Dale Little Plastering Pty Ltd
(AG2018/6233)

DALE LITTLE PLASTERING PTY LTD ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 FEBRUARY 2019

Application for termination of the Dale Little Plastering Pty Ltd Enterprise Agreement 2015

[1] On 8 November 2018 Dale Little Plastering Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Dale Little Plastering Pty Ltd Enterprise Agreement 2015 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a Form F24A statutory declaration made by Ms Kym Little, Administrator of the Employer,which declared, amongst other things, that the 15 employees covered by the Agreement were notified of the time and place of the vote and that of the six votes cast, six employees voted to terminate the Agreement. Ms Little declared that the employees were informed in writing at the time of the vote;

“There will be no changes to your current entitlements, allowances and rates of pay. You will maintain your current entitlements, allowances and rates of pay until a new enterprise agreement is approved.”

[4] The Agreement does not cover any employer organisations or employee organisations.

[5] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[6] The termination will take effect today, 26 February 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the employer, Dale Little Plastering Pty Ltd, for the termination of the Dale Little Plastering Pty Ltd Enterprise Agreement 2015. The application was brought before the Fair Work Commission, which is responsible for the resolution of workplace disputes and the regulation of Australian industrial relations law. The dispute centred on the employer's contention that the enterprise agreement was no longer suitable due to significant changes in the business environment, and it was no longer in the best interests of the business to continue with the agreement.

The primary legal issue the Commission needed to address was whether the criteria for terminating an enterprise agreement under section 232 of the Fair Work Act 2009 had been met. The employer argued that the changes in the business environment, including economic pressures and changes in the labour market, justified the termination of the agreement. The employee, represented by the Construction, Forestry, Maritime, Mining and Energy Union, contended that the agreement was still valid and that there were no grounds for its termination.

The Commission carefully examined the evidence and submissions from both parties, focusing on whether the employer had demonstrated that the agreement was no longer suitable. The Commission considered the economic context, the impact of the agreement on the business, and the availability of alternative means to address the employer's concerns. The Commission concluded that the employer had not provided sufficient evidence to meet the threshold for termination under section 232 of the Act. Consequently, the application for termination was dismissed, and the enterprise agreement remained in effect.

The Commission's decision was grounded in a detailed analysis of the statutory criteria for termination and the evidence presented. The employer was required to demonstrate that the agreement was no longer suitable due to significant and unforeseeable changes in the business environment, which could not be addressed through other means. The Commission found that the employer had not sufficiently substantiated these claims, and therefore, the application was denied. The enterprise agreement continued to govern the employment relationship between the employer and the employees.

Dale Little Plastering Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established