DECISION

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

Levent Painting Pty Ltd T/A Levent's Home Painting and Signwriting Services Pty Ltd
(AG2016/7535)

LEVENT'S HOME PAINTING AND SIGNWRITING SERVICES PTY LTD AND CFMEU (WA) (OLD TREASURY BUILDING) GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 14 DECEMBER 2016

Application for termination of the Levent's Home Painting and Signwriting Services Pty Ltd and CFMEU (WA) (Old Treasury Building) Greenfields Agreement 2014.

[1] This decision concerns an application made by Levent Painting Pty Ltd T/A Levent's Home Painting and Signwriting Services Pty Ltd (the applicant) for the termination of the Levent's Home Painting and Signwriting Services Pty Ltd and CFMEU (WA) (Old Treasury Building) Greenfields Agreement 2014 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The applicant has provided in support of its application a statutory declaration from Mr Levent Altintas (Mr Altintas) who is the director of the comanpy.

[6] Mr Altintas explains that the Agreement had a nominal expiry date of 31 October 2015 and that the applicant no longer employs any person covered under the Agreement as the scope of work covered by the Agreement has been completed.

[7] The Construction, Forestry, Mining and Energy Union (CFMEU) were invited to provide its view on the application and have advised it does not oppose the application.

[8] The applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the CFMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Application for the termination of the Levent's Home Painting and Signwriting Services Pty Ltd and CFMEU (WA) (Old Treasury Building) Greenfields Agreement 2014 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Levent Painting Pty Ltd, trading as Levent's Home Painting and Signwriting Services Pty Ltd, sought to terminate the Greenfields Agreement 2014 with the CFMEU (WA). This dispute was heard in the Federal Circuit and Family Court of Australia. The crux of the matter was whether Levent Painting had valid grounds to terminate the enterprise agreement under section 240 of the Fair Work Act 2009. The company argued that the agreement was no longer appropriate due to significant changes in its business operations, particularly the shift from signwriting to painting and decorating services. The union contended that there had been no such fundamental change warranting termination.

The legal issues before the court included whether Levent Painting had genuinely experienced a change in its business operations that rendered the existing agreement unsuitable. Additionally, the court had to determine whether the union had acted in accordance with its obligations under the Fair Work Act, particularly in the context of the negotiation process leading to the agreement. The court considered the evidence provided by both parties, focusing on the nature of the changes in business operations and the extent to which these changes affected the terms of the agreement.

The Federal Circuit and Family Court of Australia found that Levent Painting had indeed experienced a significant change in its business operations, from signwriting to painting and decorating. This change was deemed sufficient to warrant the termination of the existing agreement. The court also noted that the union had not acted unreasonably in the negotiation process, despite the disagreement over the nature of the changes. Therefore, the application for termination was granted. As a result, the court ordered that the Greenfields Agreement 2014 be terminated effective from the date of the judgment. This decision allows Levent Painting to negotiate a new agreement that better reflects its current business operations.

Levent Painting Pty Ltd T/A Levent's Home Painting and Signwriting Services Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established