Michael Christopher Vadasz T/A Australasian Piling Company

[2021] FWCA 4244

[2021] FWCA 4244

FAIR WORK COMMISSION

DECISION

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

Michael Christopher Vadasz T/A Australasian Piling Company
(AG2021/6087)

VADASZ, MICHAEL CHRISTOPHER T/AS AUSTRALASIAN PILING COMPANY AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) PILING ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 19 JULY 2021

Application for termination of the Vadasz, Michael Christopher T/As Australasian Piling Company and the CFMEU (Victorian Construction And General Division) Piling Enterprise Agreement 2016-2018

[1] On 8 July 2021 Michael Christopher Vadasz trading as Australasian Piling Company (APC) applied to the Commission to terminate the Vadasz, Michael Christopher T/As Australasian Piling Company and the CFMEU (Victorian Construction And General Division) Piling Enterprise Agreement 2016-2018 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] The Agreement names the Construction, Forestry, Mining and Energy Union (General and Construction Division, Victorian and Tasmanian branch) (CFMMEU) as a union covered.

[3] I issued Directions on 12 July 2021. These Directions required APC to make the documents lodged as part of this application available to employees with an interest in the application for inspection, such as by electronic means or on a relevant noticeboard accessible to all employees. APC was instructed to provide confirmation that this has occurred, or that there are no employees with an interest in the Directions.

[4] APC was also directed to provide proof of service on the CFMMEU in accordance with Rule 41 of the Fair Work Commission Rules 2013.

[5] On 15 July 2021 APC confirmed that there are no employees covered by the Agreement and provided proof of service on the CFMMEU.

[6] My Directions required in the event that an affected employee sought to oppose the application, or otherwise be heard on it, that advice must have been provided to the Commission and APC by close of business on Friday 28 May 2021.

[7] No correspondence was received from anyone purporting to be an affected employee.

[8] On 15 July 2021 the CFMMEU confirmed it had been served the relevant materials and that it does not oppose the application. 1

[9] APC is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[10] Section 226 of the FW 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.”

[11] The Agreement is a single enterprise agreement. It was approved on 10 July 2017 and its nominal expiry date was 30 June 2018. 2 It has now passed its nominal expiry date.

[12] The Applicant’s evidence is that there are no employees currently covered by the Agreement and as such the Agreement is no longer applicable.

[13] I have considered the information provided in the application pursuant to section 225 of the FW Act. This includes the Form 24C Declaration of Michael Christopher Vadasz dated 8 July 2021. I also take into account that the CFMMEU does not oppose the application.

[14] I am satisfied as to each of the matters contained in section 226 of the FW Act. It is appropriate to terminate the Agreement given the circumstances. Accordingly, the Agreement is terminated.

[15] The termination will come into effect from 11.59pm 19 July 2021. An Order to this effect will be issued in conjunction with this Decision. 3

DEPUTY PRESIDENT

 1   Email to Chambers – Anderson DP on 15 July 2021 at 10:00am

 2   [2017] FWC 3640

 3   PR731817

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