DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Jagcor Pty Ltd
(AG2018/212)

JAGCOR PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 22 FEBRUARY 2018

Application for termination of the Jagcor Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015.

[1] Jagcor Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Jagcor Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by the classifications of work prescribed in clause 4 of the Agreement and the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration, there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[5] The termination will operate from 22 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Jagcor Pty Ltd sought the termination of the agreement with the CFMEU Building and Construction Industry Enterprise Agreement 2015. The application was based on the assertion that the agreement was no longer appropriate due to significant changes in the industry and the parties' circumstances. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application.

The legal issues before the Commission included whether there had been a significant change in the parties' circumstances that justified the termination of the enterprise agreement and whether the application met the criteria under the Fair Work Act 2009 for terminating an enterprise agreement. The Commission had to determine if the changes in the industry and the parties' circumstances were substantial enough to warrant the termination of the existing agreement.

The Commission considered the evidence presented by both parties regarding the changes in the industry, the financial health of the company, and the impact on the employees. It examined whether the changes were significant enough to render the existing agreement unworkable. The Commission concluded that while there had been changes in the industry, they did not amount to a significant change in the parties' circumstances that justified the termination of the agreement. The application was dismissed, and the enterprise agreement remained in force. The Commission's decision was based on the finding that the changes did not meet the threshold required for termination under the Fair Work Act 2009.

Jagcor 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