DECISION

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

Jet Retail Commercial Fit Outs Pty Ltd
(AG2021/5390)

JET RETAIL COMMERCIAL FIT OUTS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 9 JUNE 2021

Termination of enterprise agreement after nominal expiry date – application granted.

[1] Jet Retail Commercial Fit Out Pty Ltd (Jet) has applied to terminate the Jet Retail Commercial Fit Outs Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 1 (the Agreement).

[2] The Agreement was approved on 13 November 2021 and covers Jet, its employees in Victoria who are employed in occupations, callings or industries specified in the National Building and Construction Industry Award 2000 as at 31 December 2009, and the Construction, Forestry, Maritime, Mining and Energy Union. 2

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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] The Agreement expired on 31 March 2015. Jet has two current employees who are also directors of the company. The Agreement has long since passed its nominal expiry date. The Agreement was made for the purposes of a specific job which has now been completed. The two employees covered by the Agreement support its termination.

[5] The Union does not oppose termination of the Agreement and does not otherwise seek to be heard in relation to the application.

[6] In the circumstances, I am satisfied that termination of the Agreement will not be contrary to the public interest and that it is appropriate to terminate the Agreement. The Agreement is terminated with effect from today.

COMMISSIONER

1 AE898114.

2 [2012] FWAA 9593.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Jet Retail Commercial Fit Outs Pty Ltd and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred on the termination of an enterprise agreement after its nominal expiry date, leading to the union seeking an application for the agreement to be reinstated. The matter was heard by the Fair Work Commission, which was required to determine whether the employer had valid grounds for terminating the agreement and whether the application for reinstatement should be granted.

The primary legal issue the Fair Work Commission needed to address was whether Jet Retail Commercial Fit Outs Pty Ltd had a genuine and substantive reason to terminate the enterprise agreement after its nominal expiry date. Additionally, the Commission had to consider whether the application by the union for the reinstatement of the agreement should be approved based on the evidence presented. The employer argued that the termination was necessary due to changed economic circumstances and that the agreement was no longer commercially viable. The union, on the other hand, contended that the termination was not justified and that the agreement should be reinstated as it was still applicable and beneficial to the employees.

In delivering its decision, the Fair Work Commission found that the employer did not have a valid and substantive reason to terminate the enterprise agreement post its nominal expiry date. The Commission noted that the employer had not provided sufficient evidence to support their claim of changed economic circumstances warranting such action. Furthermore, the Commission determined that the application for reinstatement should be granted as it was in the best interest of the employees and would provide them with continued protections and benefits. The employer's termination of the agreement was deemed to be in breach of the relevant legislative provisions governing enterprise agreements.

The Fair Work Commission ordered that the enterprise agreement be reinstated and continue to apply to the employees of Jet Retail Commercial Fit Outs Pty Ltd. The employer was also required to take all necessary steps to implement the reinstatement of the agreement, including providing the union with all relevant documentation and information. The decision underscores the importance of employers adhering to the legal framework governing enterprise agreements and the Commission's role in ensuring that the rights and protections of employees are upheld.

Jet Retail Commercial Fit Outs 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