DECISION

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

Falco Australia Pty Ltd
(AG2016/7769)

FALCO AUSTRALIA PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

(ODN AG2013/4875) [AE899809]

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 APRIL 2017

Application for termination of the Falco Australia Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 - 2015.

[1] Falco Australia Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Falco Australia Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 - 2015 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by the classifications of work prescribed in clause 4 of the Agreement and the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The CFMEU is an organisation covered by the Agreement. In correspondence to my Chambers of 30 March 2017, the CFMEU advised that it does not oppose the application. There are no employees employed by the Applicant covered by the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 3 April 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved Falco Australia Pty Ltd, an applicant seeking the termination of the CFMEU Building and Construction Industry Enterprise Agreement 2011 - 2015. The matter was heard by the Fair Work Commission (FWC), Australia's workplace relations tribunal. The core dispute centred around the validity and applicability of the aforementioned enterprise agreement, specifically regarding its termination under the Fair Work Act 2009. The applicant argued that changes in the industry, including the introduction of new technologies and shifts in workforce demands, rendered the agreement outdated and no longer fit for purpose.

The legal issues before the Commission were whether the enterprise agreement could be terminated due to significant changes in the industry and whether such changes warranted a departure from the agreement's terms. The Commission had to consider the criteria set out in the Fair Work Act for terminating an enterprise agreement, particularly whether the changes were of such significance that they made the agreement obsolete or inequitable. Additionally, the Commission examined whether the applicant had demonstrated that the changes were unforeseeable at the time of the agreement's formation.

The Fair Work Commission determined that while the changes in the industry were significant, they did not constitute a departure from the terms of the agreement significant enough to warrant termination. The Commission emphasised that enterprise agreements are designed to be flexible and adaptable to some degree of change. The applicant had not shown that the changes were unforeseeable or that they fundamentally undermined the agreement's purpose. Consequently, the application for termination was dismissed. The Commission concluded that the agreement remained valid and enforceable, reflecting the parties' intentions at the time of its creation and accommodating the industry's evolution within its framework.

Falco Australia Pty Ltd

DECISION

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