Letcon Precast Systems Pty Ltd T/A Letcon Precast Systems Pty Ltd

[2022] FWCA 2919

[2022] FWCA 2919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Letcon Precast Systems Pty Ltd T/A Letcon Precast Systems Pty Ltd

(AG2022/2365)

Letcon Precast Systems Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2011-2015

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 1 SEPTEMBER 2022

Application for termination of the Letcon Precast Systems Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2011-2015

1. An application has been made by Letcon Precast Systems Pty Ltd T/A Letcon Precast Systems Pty Ltd (Applicant) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Letcon Precast Systems Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2011-2015 (the Agreement). The Agreement has passed its nominal expiry date of 31 March 2015. The Applicant is the employer covered by the Agreement.

1. Section 225 of the Act provides as follows:

“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;

(c)         an employee organisation covered by the agreement.

1. Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act:

“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.”

Consideration

Section 225

1. I am satisfied that the Agreement has passed its nominal expiry date of 31 March 2015, consistent with s.225 of the Act.

1. I am also satisfied that the application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s.225(a) of the Act.

Section 226

1. On the Form F24C declaration filed with the application, the Applicant states that it believes that termination of the Agreement is not contrary to the public interest because:

“The entitlements provided are pursuant with and independently determined by the employment agreement being the Concrete Products Award 2020.”

1. I am satisfied, in accordance with s.226(a) of the Act, that it is not contrary to the public interest to terminate the Agreement.

1. The Construction, Forestry, Mining and Energy Union (CFMEU) is an employee organisation covered by the Agreement. On 13 July 2022, my Chambers sent the following email to the CFMEU:

“It is noted that the CFMEU is an employee organisation covered by the Agreement.

The Commissioner seeks the views of the CFMEU in relation to the application to terminate the Agreement.

Please ensure a response to the above is provided as soon as possible, but not later than 4.00pm on Wednesday, 20 July 2022.”

1. On 19 July 2022, the CFMEU responded in the following terms:

“We advise that the CFMEU will not be opposing the application.”

1. On 25 July 2022, my Chambers wrote to the Applicant to seek the views and circumstances of the employees covered by the Agreement by forwarding by email, handing to employees or posting on a notice board in the place of employment the following notice (the Notice) by no later than close of business on 29 July 2022:

   “An application has been made by Letcon Precast Systems Pty Ltd to terminate the Letcon Precast Systems Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2011-2015 (the Agreement).

   The matter has been allocated to Commissioner Lee of the Fair Work Commission for determination.

   If the application to terminate the Agreement is successful, your minimum employment entitlements will be regulated by the applicable modern award.

   Commissioner Lee is required to take into account the views of employees covered by the Agreement when determining whether to terminate the Agreement.

   If you have any views about the application to terminate the Agreement, please advise the Commissioner by email at [email protected] or by calling [phone].

   Views are to be provided to the Fair Work Commission by no later than 4.00pm on Friday, 12 August 2022.”

2. The Applicant was advised that once this course of action is followed, that it is to provide in a statutory declaration the details of the steps it took to make the Notice available to the employees. This was to be completed by 19 August 2022. On 18 August 2022, the Applicant provided a statutory declaration declared by Mr Daniel Lettieri (Director) which confirmed as follows:

“I confirm that on 26 July 2022, I caused Letcon to email a written letter containing the Notice to all Letcon employees covered by the Agreement.

I confirm that the Notice was displayed and posted on the notice board in the lunchroom of Letcon from 26 July 2022 to 2 August 2022, which was available to all Letcon employees covered by the Agreement.”

1. No views were received from any employees covered by the Agreement. I note further that on the Form F24C declaration, the Applicant states as follows:

“Employees prefer to be on Fairwork employment agreement Concrete Products Award 2020 particularly as they are not members of the CFMEU and have expressed that they do not want to be and have no intention of being members of the CFMEU”

1. I am satisfied, in accordance with s.226(b) of the Act, that it is appropriate to terminate the Agreement having regard to the circumstances of the employees, employers and organisations covered by the Agreement, including the likely effect that the termination will have on each of them.

1. Having regard to the above, I am therefore required under s.226 of the Act to terminate the Agreement. The application to terminate the Agreement is therefore approved.

1. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of this decision. An order will be issued to this effect.[1]

COMMISSIONER

[1] PR745349.

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<AE893632  PR745150>