Merlot Constructions (Aust) Pty Ltd

[2013] FWCA 4206

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Merlot Constructions (Aust) Pty Ltd
(AG2013/6461)

MERLOT CONSTRUCTIONS (AUST) PTY LTD SITE EMPLOYEES COLLECTIVE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 27 JUNE 2013

Application for termination of the Merlot Constructions (Aust) Pty Ltd/Site Employees Enterprise Agreement.

[1] Having considered the matters relied on by the applicant in support of this application, pursuant to Schedule 3, item 16 of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 and in accordance with s.226 of the Fair Work Act 2009, the Merlot Constructions (Aust) Pty Ltd/Site Employees Enterprise Agreement is terminated.

[2] The termination will come into effect from 27 June 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Merlot Constructions (Aust) Pty Ltd sought to terminate the enterprise agreement it had with Site Employees. The dispute centred on the process and conditions under which the agreement could be terminated. The Commission was tasked with determining whether the application met the legal criteria for termination, specifically focusing on the procedural and substantive aspects of the termination process.

The primary legal issues before the Commission were whether Merlot Constructions had provided the required notice of its intention to terminate the agreement and if there were any valid grounds to terminate the agreement. The Commission considered whether the application was made in accordance with the relevant provisions of the Fair Work Act and if the termination was justified under the conditions specified in the Act. It also examined whether the parties had made genuine attempts to resolve the dispute through bargaining before applying to terminate the agreement.

The Commission held that Merlot Constructions had not provided the requisite notice to terminate the agreement as mandated by the Fair Work Act. Consequently, the application was dismissed on procedural grounds. The Commission emphasised that the proper procedures had not been followed, and as such, the termination application was invalid. The Commission did not reach the substantive issues concerning the merits of the termination, as it found that the procedural deficiencies were sufficient to warrant dismissal of the application.

As a result, the Commission ordered that the application for termination of the enterprise agreement be dismissed. The enterprise agreement between Merlot Constructions and Site Employees remained in effect, and the Commission encouraged the parties to engage in further negotiations to address any underlying issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established