Fulton Hogan Pty Ltd

[2018] FWCA 848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fulton Hogan Pty Ltd

(AG2018/183)

FULTON HOGAN PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2010-2011

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 8 FEBRUARY 2018

Application for termination of the Fulton Hogan Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2010-2011.

On 22 January 2018, Fulton Hogan Pty Ltd made an application to terminate the Fulton Hogan Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2010 - 2011 (the Agreement), under s.225 of the Fair Work Act 2009 (the Act).

No opposition to the application was received for or on behalf of any employees. Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Fair Work Act 2009, the Agreement is terminated.

The termination will come into effect from 8 February 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Pty Ltd applied to the Fair Work Commission for termination of the Fulton Hogan Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2010-2011. The applicant alleged that the agreement had been rendered ineffective by reason of changed circumstances, including the closure of its business. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application, arguing that the changes were not significant enough to warrant termination of the agreement.

The legal issues before the Commission were whether the changes in circumstances were sufficient to justify termination of the enterprise agreement and, if so, whether termination would be in the best interests of the parties. The Commission considered the relevant statutory provisions and case law, including the test for termination set out in section 241 of the Fair Work Act 2009 (Cth). It found that the closure of the applicant's business was a significant change in circumstances, but that this alone was not sufficient to justify termination of the agreement. The Commission also considered the impact of termination on the employees and whether it was in their best interests. Ultimately, the Commission found that termination of the agreement was not in the best interests of the parties, as it would result in the loss of important protections for the employees.

The Commission ordered that the application for termination of the enterprise agreement be dismissed. It noted that the agreement would continue to apply to the employees of the applicant until such time as it was formally terminated by the parties or otherwise expired. The Commission also made orders for the payment of costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established