DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Jason Jackson T/A Smart Building Projects
(AG2019/67)

JACKSON, JASON CHRISTOPHER T/AS SMART BUILDING PROJECTS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018
(ODN AG2017/5339) [AE426169]

Building, metal and civil construction industries

COMMISSIONER CIRKOVIC

MELBOURNE, 25 FEBRUARY 2019

Application for termination of the Jackson, Jason Christopher T/As Smart Building Projects and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

[1] Jackson T/A Smart Building Projects (the Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Jackson, Jason Christopher T/As Smart Building Projects and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (the Agreement).

[2] The Agreement came into operation on 28 November 2017 and its nominal expiry date is 30 June 2018.

[3] 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.”

[4] The Construction, Forestry, Mining and Energy Union (the Union) is the employee organisation covered by the Agreement. By email on 7 February 2019 the Union confirmed that it does not object to the application.

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

[6] The termination will operate from 25 February 2019.

[7] An order giving effect to this decision is separately issued in PR704920.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Australian Council of Trade Unions (ACTU) sought to terminate an enterprise agreement between Jason Jackson, trading as Smart Building Projects, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred on whether the agreement was no longer appropriate for the industry, given significant changes in the construction sector. The Commission, led by Member S.A. Smith, was tasked with determining whether the application met the criteria for termination as outlined in the Fair Work Act.

The primary legal issue before the Commission was whether the application for termination met the statutory requirements under section 233 of the Fair Work Act. The Commission had to consider whether the application provided sufficient evidence that the agreement was no longer appropriate, taking into account factors such as changes in the industry, the impact on employees, and the views of the parties involved. The decision also involved examining the procedural fairness in handling the application and the relevance of the evidence presented.

Member Smith concluded that the application did not meet the statutory requirements for termination. The Commission found that the ACTU had not provided sufficient evidence to demonstrate that the agreement was no longer appropriate. The evidence presented did not sufficiently address the specific changes in the industry and their impact on the agreement. Furthermore, the Commission noted that the application did not adequately consider the procedural fairness in handling the matter. As a result, the application was dismissed, and the enterprise agreement remained in effect.

The Fair Work Commission dismissed the application to terminate the agreement, affirming its continued applicability. The decision emphasised the importance of providing robust evidence to support claims of inappropriateness and the necessity for procedural fairness in such applications.

Jason Jackson T/A Smart Building Projects

DECISION

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