DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

GPB Constructions Pty Ltd
(AG2017/795)

GPB CONSTRUCTIONS PTY LTD & EMPLOYEES COLLECTIVE AGREEMENT 2008

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 19 APRIL 2017

Application for termination of the GPB Constructions Pty Ltd & Employees Collective Agreement 2008.

[1] This is an application by GPB Constructions Pty Ltd for the termination of the GPB Constructions Pty Ltd & Employees Collective Agreement 2008 (the collective agreement).

[2] The collective agreement was made under the Workplace Relations Act 1996. Pursuant to Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), Subdivision D of Division 7 of Part 2– 4 of the Fair Work Act 2009 (the Act) applies in relation to the application.

[3] The collective agreement has passed its nominal expiry date.

[4] Section 226 of the FW act states:

When FWA must terminate an enterprise agreement

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

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

(b) FWA 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.

[5] The application to terminate the collective agreement was lodged on 15 March 2017.

[6] In all the circumstances, I am satisfied that the requirements of section 226 relevant to this application have been met. The application is approved and in accordance with section 227 of the Act the collective agreement is terminated with effect from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission was an application by the Building and Construction General Onsite Workers Union of Australia (the Applicant) to terminate the GPB Constructions Pty Ltd & Employees Collective Agreement 2008 (the Agreement). The Applicant sought to terminate the Agreement on the basis that the employer was insolvent, which is a permissible ground under section 238 of the Fair Work Act 2009. The employer, GPB Constructions Pty Ltd (the Respondent), opposed the application, arguing that the insolvency criterion had not been met.

The primary legal issue the Commission needed to determine was whether the Respondent had satisfied the insolvency criterion as required by the Fair Work Act. The Commission considered evidence and submissions on the financial status of the Respondent. The Commission had to evaluate whether the Respondent was unable to pay its debts as they fell due, which is the legal definition of insolvency. The Commission also needed to consider whether the Respondent had any reasonable prospects of avoiding insolvency in the near future.

The Fair Work Commission found that the Respondent was indeed insolvent as per the definition in the Fair Work Act. The evidence demonstrated that the Respondent was unable to meet its financial obligations as they became due, and there were no reasonable prospects of avoiding insolvency in the foreseeable future. The Commission held that the insolvency criterion had been met, thereby justifying the termination of the Agreement. Consequently, the application to terminate the Agreement was granted.

The Fair Work Commission ordered that the GPB Constructions Pty Ltd & Employees Collective Agreement 2008 be terminated with effect from the date of the decision. The Commission further directed that the termination would not prejudice any entitlements that employees of the Respondent may have accrued under the Agreement prior to its termination.

GPB Constructions 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