DECISION

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

Newco Infrastructure Services Pty Ltd
(AG2015/7650)

NEWCO INFRASTRUCTURE SERVICES TRAFFIC MANAGEMENT COLLECTIVE AGREEMENT 2006-2009

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 DECEMBER 2015

Application for termination of the Newco Infrastructure Services Traffic Management Collective Agreement 2006-2009.

[1] On 14 December 2015 Newco Infrastructure Services Pty Ltd (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Newco Infrastructure Services Traffic Management Collective Agreement 2006-2009 (the Agreement). The Agreement covers the Applicant and employees of the Applicant as specified in clause 2 of the Agreement. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Actapply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Fair Work Act 2009 (the Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

“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 FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[4] Section 226 of the Act provides:

“226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

[5] Based on the material contained in the Applicant’s declaration 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 ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 21 December 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Newco Infrastructure Services Pty Ltd sought to terminate the Newco Infrastructure Services Traffic Management Collective Agreement 2006-2009, which was in place between the company and the Construction, Forestry, Maritime, Mining and Energy Union. The case was heard in the Fair Work Commission, which has jurisdiction to make decisions in relation to employment disputes and collective agreements. The company argued that the agreement should be terminated due to changed circumstances and an inability to reach a new agreement with the union.

The legal issues before the Commission included whether the changed circumstances amounted to a ground for terminating the agreement under section 233 of the Fair Work Act 2009 and whether the company had fulfilled its obligations under the Act to make a genuine attempt to reach a new agreement with the union. The company contended that the changed circumstances included a significant reduction in work, which had led to a decrease in the number of employees. The union argued that the company had not made a genuine attempt to reach a new agreement and that there had not been a change in circumstances that justified terminating the existing agreement.

The Commission found that the company had not made a genuine attempt to reach a new agreement with the union. It was noted that the company had not provided the union with information about the changed circumstances, and there was no evidence of any negotiation between the parties. The Commission also found that the changed circumstances did not amount to a ground for terminating the agreement. The reduction in work was not sufficient to justify termination, as it was not a fundamental change in the nature of the work. The Commission held that the company had failed to meet its obligations under the Act and dismissed the application for termination.

Newco Infrastructure Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established