DECISION

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

Dee Enterprises (Qld) Pty Ltd T/A Meklek
(AG2015/2993)

DEE ENTERPRISES (QLD) PTY LTD TRADING AS MEKLEK EMPLOYEE COLLECTIVE AGREEMENT 2008/ 2011

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 27 AUGUST 2015

Application for termination of the Dee Enterprises (Qld) Pty Ltd t/as Meklek Employee Collective Agreement 2008/2011.

Background

[1] On 16 June 2015, Dee Enterprises (Qld) Pty Ltd T/A Meklek (Dee Enterprises) made an application to terminate the Dee Enterprises (Qld) Pty Ltd Trading as Meklek Employee Collective Agreement 2008/2011 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act). Clause 2 of the Agreement states that the correct title of the Agreement is Dee Enterprises (Qld) Pty Ltd AGREEMENT - 2008/2011.

[2] According to its terms, the Agreement came into effect when it was approved by the former Workplace Authority on a date that is unclear, and remained in force until its nominal expiry date of 1 November 2011, when it thereafter remained in effect by virtue of Schedule 3, Item 2(1) of the TPCA Act.

[3] Item 16 of Schedule 3 of the TPCA Act, under which the application is made, provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (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. Subdivision D of Division 7 of Part 2-4 of the Act deals with the termination of enterprise agreements after nominal expiry date.

[4] The application seeks the retrospective termination of the Agreement with effect from 12 February 2010. In support of the submission that the Agreement should be terminated with effect from that date Dee Enterprises refers to an earlier application made by it on 20 November 2009, which it asserts was not concluded, and submits that the circumstances surrounding that application are exceptional such that retrospectivity should be granted.

[5] The matter has some history. On 20 November 2009, Dee Enterprises applied to the Commission under Item 15 of Schedule 3 of the TCPA Act for the termination of the Agreement. 1 The application was allocated to another member of the Commission. The material on that file indicates that in January and February 2010 a series of correspondence was exchanged between Dee Enterprises and the Commission. On 6 August 2010 the Commission wrote to Dee Enterprises requesting that Dee Enterprises advise by no later than 13 August 2010 whether it intended to proceed with the application. The correspondence of 6 August 2010 advised that if no response was received by 13 August 2010 “the matter will be deemed discontinued”. There was no response to the correspondence of 6 August 2010 and the file was closed.

[6] In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCA 5458
Decision Date: 27 AUGUST 2015

CaseChat Overview and Summary

The case involves an application by Dee Enterprises (Qld) Pty Ltd trading as Meklek for the termination of their Employee Collective Agreement 2008/2011. The application was made before the Fair Work Commission. The primary dispute concerns the validity and applicability of the collective agreement, focusing on whether the application for termination should be granted under the Fair Work Act 2009.

The legal issues before the Commission were whether the collective agreement met the criteria for termination as outlined in section 236 of the Fair Work Act. Specifically, the Commission had to consider whether the application was made in good faith, whether there were significant changes in the circumstances of the enterprise, and whether the agreement was no longer appropriate. The employer argued that the collective agreement was no longer fit for purpose due to changes in the business environment and workforce composition. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union, contended that there were no significant changes warranting termination and that the agreement should continue to apply.

The Fair Work Commission considered the evidence and submissions from both parties. The Commission found that while there had been some changes in the business, these did not constitute significant changes warranting the termination of the collective agreement. The employer's application did not demonstrate that the changes were so substantial that the agreement was no longer appropriate. Consequently, the application for termination was dismissed, and the collective agreement remained in force.

The final orders of the Commission were that the application for the termination of the Employee Collective Agreement 2008/2011 was dismissed, and the agreement continued to be in effect.

Orders