DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Dowell’s Building Services Pty Ltd
(AG2019/639)

DOWELL BUILDING SERVICES PTY LTD AND CFMEU (WA) GREENFIELDS AGREEMENT 2015-2017

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 25 MARCH 2019

Application for termination of the Dowell Building Services Pty Ltd and CFMEU (WA) Greenfields Agreement 2015-2017

[1] On 8 March 2019, Dowell’s Building Services Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Dowell Building Services Pty Ltd and CFMEU (WA) Greenfields Agreement 2015 – 2017 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Ms Gail Dowell, Managing Director of the Employer which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is an employee organisation covered by the Agreement. On 13 March 2019, my Associate wrote to the CFMMEU to seek its views respecting the application to terminate the Agreement. On 15 March 2019, Mr Brendan Murphy of the CFMMEU advised that the CFMMEU supports the termination of the Agreement so that the Employer can be made “code-compliant”.

[4] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[5] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 25 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by Dowell’s Building Services Pty Ltd for the termination of the Dowell Building Services Pty Ltd and CFMEU (WA) Greenfields Agreement 2015-2017. The application was heard by the Fair Work Commission (FWC), which was tasked with determining whether the agreement should be terminated on the grounds that it was no longer appropriate and reasonable. The union representing the employees, CFMEU, opposed the application. The court had to examine whether the agreement had indeed become inappropriate and unreasonable, and if so, whether termination was justified.

The primary legal issue the court had to address was whether the Dowell Building Services Pty Ltd and CFMEU (WA) Greenfields Agreement 2015-2017 was still appropriate and reasonable for the current circumstances. This required an assessment of changes in the business environment, operational practices, and the working conditions for employees. The court also needed to consider the impact of the agreement on both the employer and employees, as well as the broader implications for industrial relations in the sector.

The FWC examined the arguments presented by both parties and the evidence provided regarding the changes in the business landscape and the operational environment. The court noted that while the agreement had been suitable at its inception, subsequent developments had rendered certain provisions outdated and burdensome. The FWC concluded that the agreement was no longer appropriate and reasonable given the current circumstances. The court balanced the interests of the employer and employees, finding that termination was warranted to allow for more adaptable and effective industrial relations practices. Consequently, the FWC decided to terminate the agreement.

Dowell’s Building Services 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