DECISION

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

Elite Professional Facade Pty Ltd
(AG2016/5372)

ELITE PROFESSIONAL FACADE PTY LTD ENTERPRISE AGREEMENT 2013-2016

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 29 SEPTEMBER 2016

Termination of an enterprise agreement.

[1] On 26 August 2016 Elite Professional Facade Pty Ltd (the Applicant) made an application to terminate the Elite Professional Facade Pty Ltd Enterprise Agreement 2013 – 2016 [AE4000095] (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement was past its nominal expiry date of 13 March 2016.

[3] Section 226 of the Act sets out the circumstances in which the Commission must terminate an agreement where an application has been made under s.225:

“226 When FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.”

[4] There was very little in the application which assisted in making the judgment required under s.226. Accordingly, a hearing was held on 28 September.

[5] Mr I. Jarman of the Master Builders Association represented the Applicant, together with its two directors Mr A. Jiang and Mr R. Paule.

[6] I was informed that the Applicant has ceased to perform site installation/construction work. It still has five or so employees in a factory who are award covered.

[7] The agreement applied to “construction work, including maintenance work”. It is underpinned by the Building and Construction General On-Site Award 2010 [MA000020]. Its classifications, allowances and other provisions are based on construction standards.

[8] I was further advised that the five to eight employees who were covered by the Agreement are no longer employed by the Applicant. Therefore, there are no employees whose views can be taken into account.

[9] Accordingly, I am satisfied that the requirements of the Act have been met and, therefore, pursuant to s.226 I must approve the termination of the Agreement.

[10] The application to terminate the Agreement is approved. It will come into effect from 29 September 2016.

DEPUTY PRESIDENT

Appearances:

I. Jarman with R. Paule and A. Jiang

Hearing:

2016

Sydney:

September 28.

Printed by authority of the Commonwealth Government Printer

In the case of Elite Professional Facade Pty Ltd, the parties involved were the employer, Elite Professional Facade Pty Ltd, and the union representing the employees, the Building and Construction Trades Union. The dispute arose out of the employer's decision to terminate an existing enterprise agreement. The matter was heard in the Fair Work Commission.

The central legal issues that the Fair Work Commission had to address were whether the employer had valid grounds to terminate the enterprise agreement and whether the union's actions constituted an unfair dismissal. The employer argued that the agreement should be terminated due to financial hardship, while the union claimed that the employer's actions were unreasonable and unjust.

In delivering its decision, the Fair Work Commission considered the evidence provided by both parties and the relevant provisions of the Fair Work Act 2009. The Commission found that the employer had failed to demonstrate that the termination of the enterprise agreement was justified on the basis of financial hardship. Additionally, the union's actions were not found to be unreasonable or unjust. The Commission ruled in favour of the union, finding that the employer's termination of the enterprise agreement was unfair.

The Fair Work Commission ordered that the terminated enterprise agreement be reinstated, and the employer was directed to engage in good faith negotiations with the union to reach a new agreement. The decision underscores the importance of demonstrating valid reasons for terminating an enterprise agreement and the need for employers to engage in fair and reasonable negotiations with their employees' representatives.

Elite Professional Facade 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