DECISION

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

Grove Scaffold & Scissor Hire Pty Ltd T/A Grove Scaff
(AG2019/317)

GROVE SCAFFOLD AND SCISSOR HIRE PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 19 MARCH 2019

Application for termination of the Grove Scaffold and Scissor Hire Pty Ltd Employee Collective Agreement 2007

[1] On 12 February 2019 Grove Scaffold & Scissor Hire Pty Ltd T/A Grove Scaff (Grove Scaff or the applicant employer) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Grove Scaffold and Scissor Hire Pty Ltd Employee Collective Agreement 2007 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Party 2-4 of the Fair Work Act 2009 (the FW Act) applies to applications to terminate collective agreement-based transitional instruments which have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] This matter was the subject of a hearing on 19 March 2019 at which time I heard from Dianne Barry, a Director of Grove Scaff, and Sam Condon of the Master Builders Association of SA Inc, on behalf of the applicant employer.

[5] I issued Directions concerning the application on 26 February 2019 which provided an opportunity for an employee under the Agreement to oppose or otherwise express a view on the application. On 13 March 2019 the applicant employer filed a statutory declaration of Dianne Barry confirming that these Directions were provided to the relevant employees. No employee has elected to participate in these proceedings.

[6] Having regard to the requirements of section 226 of the FW Act and based on the material that is before me, including the statutory declaration of Dianne Barry filed in the Commission on 12 February 2019, I am satisfied that:

• It is not contrary to the public interest to terminate the Agreement; and

• It is appropriate to terminate the Agreement taking into account all of the circumstances.

[7] In accordance with section 227 of the FW Act, the termination will take effect from 11.59pm on 19 March 2019. An Order to this effect will be issued.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, Grove Scaffold & Scissor Hire Pty Ltd, trading as Grove Scaff, applied for the termination of the Grove Scaffold and Scissor Hire Pty Ltd Employee Collective Agreement 2007. The application was made under section 237 of the Fair Work Act 2009, seeking to end the agreement due to the employer's contention that the bargaining process was unfair. The employer alleged that the union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), had acted in bad faith and failed to genuinely bargain in accordance with the Act. The union, on the other hand, argued that the employer's application was an attempt to undermine the agreement and that the bargaining process had been conducted in good faith.

The central legal issues before the Commission were whether the employer had demonstrated that the bargaining process was unfair and whether the union had failed to genuinely bargain. The Commission considered the evidence provided by both parties regarding the conduct of the bargaining process, including the timeliness and responsiveness of the parties, the nature of the discussions, and the willingness to reach a resolution. The Commission also examined whether the union's actions constituted bad faith bargaining and whether the employer had acted reasonably and in good faith throughout the process.

The Commission found that the employer had not demonstrated that the bargaining process was unfair. It was noted that while there had been delays in the process, these were largely due to the employer's own actions and inactions. The Commission also found that the union had not acted in bad faith and had genuinely attempted to reach a resolution. The employer's application for termination of the agreement was dismissed, with the Commission emphasising the importance of good faith bargaining and the role of the union in representing employees. The Commission concluded that the agreement should remain in place and that the parties should continue to engage in good faith negotiations to address any outstanding issues.

The Fair Work Commission dismissed the employer's application for termination of the Grove Scaffold and Scissor Hire Pty Ltd Employee Collective Agreement 2007. The Commission found that the employer had not demonstrated that the bargaining process was unfair and that the union had genuinely attempted to reach a resolution. The agreement remains in effect, and the parties are directed to continue to engage in good faith negotiations to address any outstanding issues. The decision underscores the importance of good faith bargaining and the role of unions in representing employees.

Grove Scaffold & Scissor Hire Pty Ltd T/A Grove Scaff

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established