DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Nick’s Cranes Pty Ltd T/A Nick’s Crane Services
(AG2014/9930)

NICKS CRANES PTY LTD / CFMEU ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O’CALLAGHAN	ADELAIDE, 4 MARCH 2015

Application for termination of the Nicks Cranes Pty Ltd / CFMEU Enterprise Agreement 2011 - changed circumstances - public interest - termination appropriate.

[1] On 19 November 2014 Nick's Cranes Pty Ltd T/A Nick's Crane Services (Nick's Cranes) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the FW Act) in which it sought the termination of the Nick's Cranes Pty Ltd/ CFMEU Enterprise Agreement 2011 (the Agreement). Shortly after that application was made the Construction, Forestry, Mining and Energy Union (CFMEU) notified the Fair Work Commission (the FWC) that it was opposed to the termination application.

[2] The Agreement was approved on 22 March 2012 and achieved its nominal expiry date on 30 June 2013.

[3] On 21 November 2014 I issued Directions which recorded acknowledgement of the application and the provisions of s.226 of the FW Act and relevantly stated:

“[3] The FAIR WORK COMMISSION (the Commission) notes the information provided in the Statutory Declaration provided by Nick’s Cranes Pty Ltd. The Construction, Forestry, Mining and Energy Union (CFMEU) are a named employee organisation covered by the agreement. In the event that the union or an employee representative seeks to oppose the termination application, advice to this effect should be provided by Friday 28 November 2014. A copy of these directions have been forwarded to the CFMEU.

[4] Nick’s Cranes Pty Ltd are DIRECTED to post a copy of the application (Forms F24B & F24C) and the FWC Directions at an appropriate location for the information of all employees by close of business on Monday 24 November 2014.”

[4] I note that, apart from the participation of the CFMEU in the hearings on this matter, there has been no request from an employee or other employee representative to be heard on the application. The parties appear to be in agreement that the CFMEU represents about 80% of the current Nick's Cranes employees. It is also appropriate that I note that orders to produce documents requested by the CFMEU were issued, and were, I understand fully complied with.

[5] In the proceedings in this matter Nick's Cranes was represented by Ms Bolzon, of counsel and then Mr Warren, of counsel through an unopposed grant of permission made under s.596(2)(a). Ms Dooley represented the CFMEU in the matter.

[6] The application was the subject of hearings on 3 December 2014 and 5 February 2015 at which the parties acknowledged the possibility that ongoing discussions could result in "in principle" agreement on a replacement agreement which would obviate the necessity to pursue the application. At a further hearing on 17 February 2015 Nick's Cranes advised that whilst some matters proposed to be included in a replacement agreement had been agreed, there was no…

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.

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Details

Case: [2015] FWCA 1327
Decision Date: 4 MARCH 2015

CaseChat Overview and Summary

Nick’s Cranes Pty Ltd, trading as Nick’s Crane Services, applied for the termination of the Nicks Cranes Pty Ltd/CFMEU Enterprise Agreement 2011. The application was made on the basis of changed circumstances and the public interest. The Fair Work Commission was the court that heard the application. The matter hinged on whether the altered economic and business environment justified the termination of the enterprise agreement and whether such a termination would serve the public interest.

The primary legal issues before the Commission involved the interpretation of the criteria for terminating an enterprise agreement under the Fair Work Act 2009. Specifically, the Commission had to determine if there had been a significant change in circumstances that materially affected the operation of the agreement and if terminating the agreement would be in the public interest. The application also necessitated a consideration of the implications of such a termination on the employees and the broader industry.

The Fair Work Commission found that the significant changes in the economic and business environment did materially affect the operation of the enterprise agreement. The Commission noted that the changed circumstances were beyond the control of the parties and had a substantial impact on the business operations of Nick’s Cranes. Additionally, the Commission determined that terminating the enterprise agreement would indeed serve the public interest by facilitating a more adaptable and economically viable business environment. Consequently, the Commission decided in favour of the applicant and terminated the enterprise agreement.

The final orders included the termination of the Nicks Cranes Pty Ltd/CFMEU Enterprise Agreement 2011, effective from the date of the decision. The Commission emphasised that the termination was based on the specific and significant changes in circumstances and the public interest considerations identified during the hearing.

Orders