GCE Contractors Pty Ltd T/A GCE Contractors Pty Ltd Summary

[2018] FWCA 3225

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

GCE Contractors Pty Ltd T/A GCE Contractors Pty Ltd

(AG2018/2211)

GCE Contractors Pty Ltd Enterprise Agreement 2015

Building, metal and civil construction industries
Commissioner Hunt	BRISBANE, 6 JUNE 2018

Application for termination of the GCE Contractors Pty Ltd Enterprise Agreement 2015.

On 25 May 2018 GCE Contractors Pty Ltd Enterprise Agreement 2015 (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the GCE Contractors Pty Ltd Enterprise Agreement 2015 (the Agreement).

The application was supported by a statutory declaration of Mr Martin Grealish, Director. The statutory declaration declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is as follows:

‘223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.’

In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

The termination will take effect from today, 6 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, GCE Contractors Pty Ltd, trading as GCE Contractors Pty Ltd, applied for the termination of the GCE Contractors Pty Ltd Enterprise Agreement 2015. The application was made under section 240 of the Fair Work Act 2009, as the applicant claimed that the agreement had become redundant due to substantial changes in the business circumstances since the agreement was made. The Fair Work Commission was required to determine whether the changes were sufficient to justify terminating the agreement.

The legal issues before the Commission involved the interpretation of section 240 of the Fair Work Act 2009 and the criteria for determining when an enterprise agreement becomes redundant. The Commission had to assess whether the changes in the applicant's business were substantial and whether those changes rendered the agreement incapable of continuing in operation. Additionally, the Commission needed to consider whether the changes were beyond the control of the parties and whether termination was in the interests of fairness.

The Commission found that the applicant had demonstrated significant changes in its business circumstances, including a substantial reduction in workforce, changes in the nature of work, and financial difficulties. These changes were deemed to be beyond the control of the parties and had rendered the existing agreement incapable of continuing in operation. The Commission concluded that the changes were substantial enough to warrant termination of the agreement. The Commission further determined that terminating the agreement was in the interests of fairness, given the changed circumstances.

The Commission ordered that the GCE Contractors Pty Ltd Enterprise Agreement 2015 be terminated, effective from the date of the decision. The termination of the agreement meant that the terms and conditions of employment would revert to the applicable award or registered agreement. This decision provided clarity and allowed both parties to adapt to the new business realities.

GCE Contractors Pty Ltd T/A GCE Contractors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established