MGR INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) DEMOLITION ENTERPRISE AGREEMENT 2016-2018; ANDMGR INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION)...

[2021] FWCA 4910

[2021] FWCA 4910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

MGR Industries Pty Ltd
(AG2021/6423/6428)

MGR INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) DEMOLITION ENTERPRISE AGREEMENT 2016-2018; AND
MGR INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ASBESTOS REMOVAL ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 11 AUGUST 2021

Application for termination of the MGR Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Demolition Enterprise Agreement 2016-2018 and the MGR Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016-2018.

[1] On 27 July 2021, MGR Industries Pty Ltd (the Applicant) filed the Applications pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the MGR Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Demolition Enterprise Agreement 2016-2018 1and the MGR Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016-20182  (the Agreements). The Agreements passed the nominal expiry date of 30 June 2018 and the Applicant is the employer covered by the Agreements. I note that the Agreements cover an employee organisation that was formerly the Construction, Forestry, Mining and Energy Union.

[2] Accompanying the Applications were Form F24C statutory declarations made by Mr Chris Yates, General Manager on 27 July 2021 in which he declared that there were employees covered by the Agreements and that MGR is ceasing operations. In an email on 9 August 2021 the Applications were corrected to state there were no employees covered by the Agreement and advising that this had been inaccurately reflected in the F24C forms. 3 I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586.

[3] MGR advised that it had served the Applications and statutory declarations on the CFMMEU.

[4] On 30 July 2021 my chambers emailed the CFMMEU requesting their views to advise whether or not it opposes the Applications.

[5] On 6 August 2021, Ms Emma Barnes-Whelan, Lawyer, Construction and General Division of the CFMMEU confirmed that it does not oppose the Applications. 4

Legislation

[6] 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.”

[7] Section 225 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.”

[8] Section 227 of the Act provides as follows:

“227       When termination comes into operation”

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

Section 225

[9] An employer covered by an agreement may apply under s.225(a) of the Act to the Commission for the termination of the Agreement if it has passed its nominal expiry date. As noted above, the Agreements nominally expired over three years ago. Further, Mr Yates declared that MGR is the employer covered by the Agreements. As such, I am satisfied that MGR has standing to bring the Applications under s.225(a) of the Act

Section 226

[10] Based on the material before me, I am satisfied that termination of the Agreements is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b), I consider that it is appropriate to terminate the Agreements.

[11] Given my conclusions above I must terminated the Agreements. In accordance with s.227 of the Act, the termination will take effect from 11 August 2021.

COMMISSIONER

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 1  AE423836

 2  AE423833

 3   Email to Chambers – Mirabella C on 9 August 2021 at 11:44am

 4   Email to Chambers – Mirabella C on 6 August 2021 at 4:09pm