Leviathan Trust T/A Super City Concrete Cutting Pty Ltd

[2020] FWCA 4935

[2020] FWCA 4935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Leviathan Trust T/A Super City Concrete Cutting Pty Ltd
(AG2020/2596)

LEVIATHAN TRUST T/As SUPER CITY CONCRETE CUTTING PTY LTD and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018

Building, metal and civil construction industries

COMMISSIONER BISSETT

MELBOURNE, 15 SEPTEMBER 2020

Application for termination of the LEVIATHAN TRUST T/As SUPER CITY CONCRETE CUTTING PTY LTD and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018.

[1] On 1 September 2020 Leviathan Trust T/A Super City Concrete Cutting Pty Ltd made an application to terminate the LEVIATHAN TRUST T/As SUPER CITY CONCRETE CUTTING PTY LTD and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 1 2016-2018 (Agreement) under s.222 of the Fair Work Act 2009 (FW Act).

[2] The application was made following a vote of employees covered by the Agreement that agreed to the termination.

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

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.

[4] I am satisfied on the basis of the material filed, including a statutory declaration of the Mr Jason Franken of the employer, that the employer has complied with the requirements of s.220(2) of the FW Act.

[5] I am satisfied that the termination was agreed to in accordance with s.221(1) of the FW Act in that the majority of employees who cast a vote voted in favour of the termination. Further, I am satisfied that there are no grounds for believing the employees have not agreed to the termination.

[6] I note that the Construction, Forestry, Maritime, Mining and Energy Union, an employee organisation covered by the Agreement, does not wish to be heard on the application. I infer from this that it does not oppose the termination of the Agreement.

[7] In these circumstances I am satisfied that the Agreement should be terminated. An order 2 to this effect will be issued separately to this decision. In accordance with s.224 of the FW Act the termination will operate from 15 September 2020.

COMMISSIONER

 1   AE421382.

 2   PR722783.

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<AE421382  PR722775 >