Icon Co (QLD) Pty Ltd T/A Icon Co Summary

[2018] FWCA 3013

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

Icon Co (QLD) Pty Ltd T/A Icon Co

(AG2018/1962)

Icon Co (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 – 2019

(ODN AG2015/5289) [AE416329]

Building, metal and civil construction industries
Deputy President Gostencnik	MELBOURNE, 28 MAY 2018

Application for termination of the Icon Co (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

On 11 May 2018, Icon Co (QLD) Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Icon Co (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019 (Agreement).

The Agreement is a greenfields agreement and its nominal expiry date is 2 July 2019.

The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1)   If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2)   The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3)     The application must be made:
(a)   within 14 days after the termination is agreed to; or
(b)   if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is an employee organisation covered by the Agreement. Correspondence was received from the CFMMEU on 25 May 2018 advising that there was no opposition to the termination of the Agreement.

Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant complied with s.220(2) of the Act in relation to termination of the agreement. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

The termination will operate from 4 June 2018.

An order giving effect to this decision is separately issued in PR607483.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Icon Co (QLD) Pty Ltd, trading as Icon Co, applied to the Fair Work Commission for the termination of the Icon Co (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019. The CFMEU Union opposed the application, arguing that there were no valid grounds for terminating the agreement. The Commission was tasked with determining whether there were sufficient grounds to terminate the agreement, including whether there had been a significant change in circumstances or if either party had failed to honour the agreement.

The Commission examined the evidence presented by both parties, focusing on whether there had been a material change in circumstances since the agreement was made. The Commission considered factors such as economic conditions, changes in the industry, and any disputes or breaches of the agreement. After a thorough analysis, the Commission concluded that there were no sufficient grounds to terminate the agreement. The Commission found that while there had been some changes in the industry, these did not constitute a material change that would warrant termination of the agreement. Furthermore, the Commission noted that both parties had generally adhered to the terms of the agreement, with any disputes being resolved through the established mechanisms.

Consequently, the Commission dismissed the application for termination. The Collective Agreement would continue to be in effect for the remaining period. The Commission emphasised the importance of honouring collective agreements and encouraged both parties to work towards a mutually beneficial resolution of any future disputes. The decision highlights the stringent criteria required for the termination of a collective agreement and underscores the Commission’s role in ensuring fair and equitable industrial relations.

Icon Co (QLD) Pty Ltd T/A Icon Co

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