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.

Printed by authority of the Commonwealth Government Printer

The applicant, Super City Concrete Cutting Pty Ltd, trading as Leviathan Trust, sought the termination of the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018. The matter was heard by the Fair Work Commission. The primary dispute centred on the applicability and enforceability of the enterprise agreement in question, specifically whether it had been terminated or whether it remained in effect. The applicant argued that the agreement had effectively expired and that the continued enforcement of its provisions was no longer valid. The respondent, CFMEU, contended that the agreement remained binding and that the applicant's actions constituted an unlawful termination.

The key legal issues before the commission were whether the enterprise agreement had indeed expired as claimed by the applicant and, if not, whether the applicant had the right to unilaterally terminate it. The court needed to determine the correct interpretation of the agreement's terms regarding its duration and the process for termination. Additionally, the commission had to consider whether the applicant had complied with the necessary procedural requirements for terminating the agreement.

In delivering its decision, the commission examined the terms of the enterprise agreement and the applicable legal principles governing such agreements. It found that the agreement had not expired as the applicant had suggested. The commission noted that the agreement contained specific provisions regarding its duration and renewal, which had not been properly followed. Furthermore, the commission held that the applicant had not adhered to the necessary procedural steps required for terminating the agreement. Consequently, the commission ruled that the enterprise agreement remained in effect and that the applicant's attempt to terminate it was unlawful. The commission ordered that the agreement continue to apply between the parties, and the applicant was required to comply with its terms.

Leviathan Trust T/A Super City Concrete Cutting Pty Ltd

DECISION

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