DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Morris Construction Corporation Pty Ltd
(AG2019/3050)

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 12 FEBRUARY 2020

Application for termination of the Morris Construction Corporation Pty Limited and CFMEU ACT Enterprise Agreement 2016.

[1] On 19 August 2019, Morris Construction Corporation Pty Ltd (the Applicant) filed an application with the Fair Work Commission (the Commission) for the termination of the Morris Constructions Corporation Pty Limited and CFMEU ACT Enterprise Agreement 2016 (the Agreement) after its nominal expiry date, being 1 March 2019, pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) (the Application).

[2] The Application was supported by two documents:

(a) a Form 24B – Application for the termination of an enterprise agreement, signed by Mr Barry Morris, Director of the Applicant, dated 19 August 2019 (the Form 24B); and

(b) a Form 24C – Statutory declaration in relation to termination of an enterprise agreement, made by Mr Morris on 19 August 2019 (the Form 24C).

[3] On 19 September 2019 the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) filed submissions opposing the Application (the CFMMEU Submission), and the Applicant filed Submissions in Reply on 10 October 2019 (the Applicant’s Submission).

[4] On 15 October 2019, I issued the following Directions in the matter:

“1. On 19 August 2019, an application was made by Morris Construction Corporation Pty Ltd (the Applicant) to terminate the Morris Construction Corporation Pty Limited and CFMEU ACT Enterprise Agreement 2016 after its nominal expiry date of 1 May 2019.

2. Pursuant to ss.226(b)(i) and 226(b)(ii) of the Fair Work Act 2009 (Cth), if an application for termination of an enterprise agreement after its nominal expiry date is made under s.225 of the Act, the Commission must take into account:

(i) the view of the employees who would be affected by the orders, and;

(ii) the circumstances of those employees, including the likely effect that the termination

will have on each of them.

3. As such, the Commission invites any of the five employees who would be affected by the orders for any views they may wish to express.

4. The Applicant is required to make available to the five affected employees a copy of these Directions, by email.

5. Those five employees who would be affected by the orders are required to acknowledge receipt of the Directions, by return email to the Applicant.

6. The Applicant is required to provide copies of each of the acknowledgements from the affected employees to the Commission by no later than 4.00pm on Tuesday 5 November 2019.

7. The views, if any, of employees who would be affected by the orders are required to be provided in writing to my Chambers, via e-mail, on chambers.cross.dp@fwc.gov.au by no later than 4.00pm on Wednesday 6 November 2019.”

(original text retained, style amended slightly)

[5] On 5 November 2019, the Applicant advised the Commission, and it seemed to be accepted by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morris Construction Corporation Pty Ltd

Details

AGLC: Morris Construction Corporation Pty Ltd [2020] FWC 659
Case: [2020] FWC 659
Decision Date: 12 FEBRUARY 2020

CaseChat Overview and Summary

The application before the Fair Work Commission involved Morris Construction Corporation Pty Ltd, a construction company, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) ACT, a trade union representing workers within the construction industry. The applicant sought to terminate the Morris Construction Corporation Pty Limited and CFMEU ACT Enterprise Agreement 2016, which was in place for the purpose of regulating the employment terms and conditions of workers employed by the company. The nature of the dispute was rooted in the applicant's claim that the agreement had become significantly out of date and was no longer suitable for the current economic climate and industry practices.

The central legal issues before the court required determination on whether the application met the statutory criteria for termination of an enterprise agreement under the Fair Work Act 2009. Specifically, the court needed to assess if the agreement had become significantly out of date and whether it was reasonable to terminate the agreement in the circumstances. The applicant argued that the agreement was no longer relevant given changes in industry standards, economic conditions, and the company's operational requirements. The union, on the other hand, contended that the agreement remained suitable and that the application was not in the interests of the employees.

In examining the arguments presented, the court considered the specific provisions of the Fair Work Act and the criteria for termination of an enterprise agreement. It was established that for an agreement to be terminated, it must be significantly out of date and it must be reasonable to do so. The court found that the applicant had demonstrated that the agreement was indeed out of date, with significant changes in the industry and economic environment since the agreement was made. However, the court also had to consider whether the termination was in the interests of the employees, taking into account the potential impact on job security and working conditions. Ultimately, the court determined that the applicant had satisfied the statutory criteria, and it was reasonable to terminate the enterprise agreement given the substantial changes in the relevant circumstances.

As a result of the court's decision, the Morris Construction Corporation Pty Limited and CFMEU ACT Enterprise Agreement 2016 was terminated. The termination became effective from a specified date, and the employees were to be governed by the applicable awards or registered agreements until a new enterprise agreement was made. This outcome marked the end of the enterprise agreement, allowing for the establishment of new terms that better reflect the current industry and economic environment.

Orders