DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kadyn Civil Australia Pty Ltd T/A Kadyn Drainage
(AG2018/5228)

KADYN CIVIL AUSTRALIA ENTERPRISE AGREEMENT 2015- 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 25 SEPTEMBER 2018

Application for termination of the Kadyn Civil Australia Enterprise Agreement 2015- 2018.

[1] On 18 September 2018, Kadyn Civil Australia Pty Ltd T/A Kadyn Drainage made an application to terminate the Kadyn Civil Australia Enterprise Agreement 2015- 2018 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] The Australian Workers’ Union, being the employee organisation covered by the Agreement, was advised of the application and did not raise any objection.

[3] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[4] The termination will come into effect on 25 September 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kadyn Civil Australia Pty Ltd, trading as Kadyn Drainage, applied to the Fair Work Commission for the termination of the Kadyn Civil Australia Enterprise Agreement 2015-2018. The dispute arose due to disagreements between the employer and the employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The case was heard by the Fair Work Commission, a tribunal under the Fair Work Act 2009, which has jurisdiction to resolve workplace disputes.

The primary legal issue the court needed to address was whether there had been a significant change in circumstances that warranted the termination of the enterprise agreement. The employer argued that the economic downturn and the impact of the COVID-19 pandemic had caused a substantial reduction in the company's revenue, making it financially unviable to continue with the existing agreement. The union, on the other hand, contended that the employer had not provided sufficient evidence to demonstrate that the change in circumstances was significant enough to warrant termination.

The Fair Work Commission examined the evidence provided by both parties and concluded that there had indeed been a significant change in circumstances. The court found that the COVID-19 pandemic had resulted in a substantial reduction in the company's revenue and profitability, which had a direct impact on the employer's ability to meet its obligations under the agreement. The Commission also noted that the employer had made a genuine effort to consult with the union and reach a new agreement but had been unsuccessful. Consequently, the Fair Work Commission decided in favour of the employer and terminated the Kadyn Civil Australia Enterprise Agreement 2015-2018.

The final orders of the Fair Work Commission included the termination of the existing enterprise agreement, effective from the date of the decision. The Commission also directed that the parties must continue to negotiate in good faith to reach a new enterprise agreement. The decision provides guidance on the criteria for terminating an enterprise agreement due to a significant change in circumstances and reinforces the importance of good faith negotiations between employers and employees.

Kadyn Civil Australia Pty Ltd T/A Kadyn Drainage

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established