DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Levent Painting Pty Ltd T/A Levent’s Home Painting and Signwriting Services Pty Ltd
(AG2016/7147)

LEVENT’S HOME PAINTING & SIGNWRITING SERVICES PTY LTD AND CFMEU (WA) ENTERPRISE AGREEMENT 2015-2017

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 5 DECEMBER 2016

Application for termination of the Levent’s Home Painting & Signwriting Services Pty Ltd and CFMEU (WA) Enterprise Agreement 2015-2017.

[1] On 21 November 2016 Levent Painting Pty Ltd T/A Levent’s Home Painting and Signwriting Services Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Levent’s Home Painting & Signwriting Services Pty Ltd and CFMEU (WA) Enterprise Agreement 2015-2017 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The Construction, Forestry, Mining and Energy Union (CFMEU) were invited to provide their view on the application but have not sought to make a submission.

[4] Based on the material that is before me, including the Statutory Declarations sworn by Mr Levent Altintas the Director of the Employer and the nine employees covered by the Agreement, I am satisfied that the requirements of s.223 of the Act have been met.

[5] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Australian Industrial Relations Commission involved Levent Painting Pty Ltd, trading as Levent’s Home Painting and Signwriting Services Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (WA) (CFMEU). The applicant sought the termination of the Levent’s Home Painting & Signwriting Services Pty Ltd and CFMEU (WA) Enterprise Agreement 2015-2017. The primary dispute centred around the alleged redundancy of the enterprise agreement, primarily due to significant changes in the operations of the applicant company, including the cessation of certain activities and the reduction in workforce, which purportedly rendered the existing agreement unworkable and outdated.

The court was required to determine whether the enterprise agreement had indeed become redundant, thereby justifying its termination. The legal issues at hand included whether the applicant had fulfilled the necessary conditions to apply for the termination of the enterprise agreement, such as demonstrating substantial changes in the business operations that made the agreement unworkable. Additionally, the court needed to assess the impact of these changes on the workforce and whether the termination would be in the best interests of the employees, considering their rights and protections under the Fair Work Act 2009.

The court, in its decision, examined the applicant's submissions and evidence concerning the operational changes and workforce reductions. It found that the applicant had indeed presented substantial evidence supporting the claim that the enterprise agreement had become unworkable due to significant business changes. The court concluded that the changes were not only substantial but also not reasonably foreseeable at the time the agreement was made, thus justifying the application for termination. The court further noted that the termination would not adversely affect the employees' rights and protections, as the applicant had provided adequate evidence of the unworkability of the agreement and the necessity for its termination.

The final orders of the court were that the Levent’s Home Painting & Signwriting Services Pty Ltd and CFMEU (WA) Enterprise Agreement 2015-2017 was terminated, effective from the date of the decision. This termination allowed the applicant to operate under the applicable award conditions while they developed a new enterprise agreement that better reflects the current state of their business operations.

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