Locksolid Unit Trust T/A Locksolid Australia Pty Ltd Summary

[2022] FWCA 2342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Locksolid Unit Trust T/A Locksolid Australia Pty Ltd

(AG2022/2155)

Locksolid Unit Trust T/As Locksolid Australia Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 13 JULY 2022

Application for termination of the Locksolid Unit Trust T/AS Locksolid Australia Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 - 2015

Locksolid Unit Trust T/A Locksolid Australia Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Locksolid Unit Trust T/AS Locksolid Australia Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement). The Agreement has passed its nominal expiry date of 31 March 2015 and the Applicant is the employer covered by the Agreement.

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.”

Section 226 of the Act provides as follows:

“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.”

The Applicant filed a Form F24C declaration dated 24 June 2022. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are an employee organisation covered by the Agreement. No employees are presently covered by the Agreement.

On 1 July 2022 notice was given to the CFMMEU of the proposed termination of the Agreement and of the materials filed with the Commission. No submissions were filed in response.

The Form F24C declaration by the employer indicated that termination would have “no effect as we have no employees who would be covered by this agreement”.

Based on the material contained in the declaration of Danielle Stone filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

The termination is effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The application was brought by Locksolid Unit Trust T/A Locksolid Australia Pty Ltd seeking termination of the Locksolid Unit Trust T/A Locksolid Australia Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 - 2015. The application was heard by the Fair Work Commission. The primary issue before the Commission was whether the enterprise agreement should be terminated due to the applicant's cessation of business.

The Commission examined the terms of the agreement and the relevant industrial legislation. It was noted that the enterprise agreement was entered into with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and covered Locksolid's employees. The applicant argued that it had ceased its business and therefore the enterprise agreement should be terminated. The CFMEU opposed the application, arguing that the agreement should remain in effect until the expiration of its term or until it was terminated in accordance with the relevant provisions of the Fair Work Act 2009.

The Commission found that the applicant had indeed ceased its business, but that this did not automatically result in the termination of the enterprise agreement. The Commission noted that the agreement provided for its continuation until the expiration of its term, or until terminated in accordance with the Fair Work Act. The Commission held that the applicant had not provided any evidence to support an early termination of the agreement and that the agreement should remain in effect until its expiration or until it was terminated in accordance with the relevant provisions of the Act.

The Commission dismissed the application and ordered that the enterprise agreement remain in effect until its expiration or until it was terminated in accordance with the Fair Work Act. The Commission also noted that any further applications for termination should be accompanied by evidence to support such a termination.

Locksolid Unit Trust T/A Locksolid Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established