FVP Constructions (Vic) Pty Ltd

[2017] FWC 508

[2017] FWC 508

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

FVP Constructions (Vic) Pty Ltd
(AG2016/7022)

FVP CONSTRUCTIONS (VIC) PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2005-2008

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 23 JANUARY 2017

Application for termination of the FVP Constructions (Vic) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008.

[1] An application has been made by FVP Constructions (Vic) Pty Ltd (Applicant) pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TCPA Act) to terminate the FVP Constructions (Vic) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 (Agreement). The nominal expiry date of the Agreement was 31 March 2008.

Legislation

[2] The relevant provision of the TCPA Act is as follows:

“Schedule 3…
…
16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[3] The relevant provisions of the Fair Work Act 2009 (Act) are 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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

Standing

[4] 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 s.225(a) of the Act.

Public Interest

[5] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that there are currently no employees covered by the Agreement and that it does not do any government/public works.

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

Views, Circumstances and Likely Effect of Termination

[7] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the Agreement. In correspondence to my chambers of 17 January 2017, the CFMEU advised that it did not seek to be heard in relation to the termination of the Agreement.

[8] The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that termination of the Agreement would have no effect on its circumstances.

[9] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[10] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[11] An Order will be issued terminating the Agreement with effect from 23 January 2017.

COMMISSIONER

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