Driller Building Contractors Pty Ltd as Trustee for Driller Family Trust T/A Driller Building Contractors

[2020] FWCA 2605

[2020] FWCA 2605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Driller Building Contractors Pty Ltd as Trustee for Driller Family Trust T/A Driller Building Contractors
(AG2020/1128)

DRILLER FAMILY TRUST (THE TRUSTEE FOR) T/AS DRILLER BUILDING CONTRACTORS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 19 MAY 2020

Application for termination of the Driller Family Trust (the Trustee for) t/as Driller Building Contractors Pty Ltd and The CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 after its nominal expiry date.

[1] Driller Building Contractors Pty Ltd as Trustee for Driller Family Trust T/A Driller Building Contractors, the Applicant, made an application to the Fair Work Commission (the Commission) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Driller Family Trust (the Trustee for) t/as Driller Building Contractors Pty Ltd and The CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement).

[2] The Agreement came into operation on 6 September 2013 and its nominal expiry date is 31 March 2015.

[3] The Applicant’s application indicated that no employees were covered by the Agreement.    1

[4] Directions were issued on 23 April 2020, requiring the Applicant to serve the directions and its application on any employee organisations covered by the Agreement and inviting any such organisation to respond to the application. The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) wrote to my chambers advising that “the CFMMEU does not support the application however does not propose to make any submissions in opposition”.

[5] I determined that it was appropriate to decide this matter on the papers. 2

Legislation

[6] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passed its nominal expiry date. Section 225 is 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;

(c) an employee organisation covered by the agreement.”

[7] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is 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

Standing

[8] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

Public Interest

[9] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in the statutory declaration of Mr Shane Driller declared 21 April 2020 (the Statutory Declaration) that:

“The Agreement is significantly outdated and therefore no longer reflects the current industry standards” 3

[10] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to section 226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

[11] The CFMMEU is the only employee organisation covered by the Agreement. As noted above, they neither consent to nor oppose the application to terminate the Agreement.

[12] No employees are covered by the Agreement. 4

[13] No employee provided any material in objection to the application.

[14] The Applicant declares in its Statutory Declaration that, if the agreement is terminated there will be “no effect” on the Applicant as “The employer currently only undertakes residential construction work to which the Agreement does not apply”. 5

[15] Taking into account all the circumstances, prescribed by section 226(b)(i)-(ii) of the Act, I consider that it is appropriate to terminate the Agreement.

Conclusion

[16] For the reasons above, the Agreement must be terminated pursuant to section 226 of the Act.

[17] An Order will be issued terminating the Agreement with effect from 19 May 2020.

COMMISSIONER

 1   Form F24B dated 21 April 2020.

 2   The Applicant and CFMMEU did not object to this approach.

 3   Form F24C dated 21 April 2020 at 2.1.

 4   Form F24B dated 21 April 2020.

 5   Form F24C dated 21 April 2020 at 2.3.

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