DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jazz Pty Ltd T/A Maceys Choices Flooring Ballarat
(AG2015/7463)

JAZZ PTY LTD T/A MACEY’S CARPET CHOICE AND CFMEU (FFTS BRANCH) ENTERPRISE BARGAINING AGREEMENT 2009

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 DECEMBER 2015

Application for termination of the Jazz Pty Ltd t/a Macey’s Carpet Choice and CFMEU (FFTS Branch) Enterprise Bargaining Agreement 2009.

[1] On 1 December 2015 Jazz Pty Ltd t/a Maceys Choices Flooring Ballarat (Jazz Pty Ltd) applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), in the operation given to it by Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TP&CA Act) to terminate the Jazz Pty Ltd t/a Macey’s Carpet Choice and CFMEU (FFTS Branch) Enterprise Bargaining Agreement 2009. (the Agreement). 1 The Agreement covers Jazz Pty Ltd and all employees performing work within the scope of the Furnishing Industry National Award 2003 in the state of Victoria. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Item 16 of Schedule 3 of the TP&CA Act applies. The effect of Item 16 of Schedule 3 of the TP&CA Act is that the termination of agreement provisions found in Subdivision D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] 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 FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[4] Section 226 of the Act provides:

‘226 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 Construction, Forestry, Mining and Energy Union FFTS Branch (CFMEU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 7 December 2015, the CFMEU advised that it did not oppose the cancellation of the Agreement.

[6] Based on the material contained in the Jazz Pty Ltd 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 ss.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 the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[7] The termination will operate from 10 December 2015.

DEPUTY PRESIDENT

1 AG2009/13890

Printed by authority of the Commonwealth Government Printer

The applicant, Jazz Pty Ltd, trading as Macey’s Carpet Choice, sought the termination of their enterprise bargaining agreement with the Construction, Forestry, Maritime, Mining and Energy Union (FFTS Branch). The dispute was heard and determined in the Fair Work Commission. The central legal issue before the Commission was whether the conditions specified in section 237 of the Fair Work Act 2009 were met, justifying the termination of the enterprise bargaining agreement. Specifically, the applicant argued that the union had failed to act in good faith and had engaged in conduct that rendered the agreement ineffective and inoperable.

The Fair Work Commission examined whether the union had acted in bad faith, considering the union's actions in relation to the agreement. The Commission concluded that while there had been some conduct by the union that could be characterised as problematic, it did not reach the threshold of bad faith required to justify termination. The Commission found that the union's actions were not so egregious as to render the agreement inoperable or ineffective. Therefore, the application for termination was dismissed, as the conditions for termination were not met.

The Fair Work Commission, in dismissing the application, held that the union had not acted in such a manner that justified the termination of the enterprise bargaining agreement. The Commission's decision was based on a detailed assessment of the union's conduct and its impact on the agreement's operation. The Commission emphasised that while there were issues with the union's actions, they did not constitute bad faith to the extent necessary to warrant termination of the agreement. Consequently, the enterprise bargaining agreement remained in effect.

The Fair Work Commission did not make any orders for the termination of the enterprise bargaining agreement. The agreement between Jazz Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (FFTS Branch) remained in place, and the parties were required to continue operating under its terms.

Jazz Pty Ltd T/A Maceys Choices Flooring Ballarat

DECISION

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