Nuceil 2004 Pty Ltd T/A Nuceil Services Summary

[2014] FWCA 8237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Nuceil 2004 Pty Ltd T/A Nuceil Services
(AG2014/8009)

NUCEIL SERVICES AND CFMEU (WA) AND EMPLOYEES ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 20 NOVEMBER 2014

Application for termination of the Nuceil Services and CFMEU (WA) and Employees Enterprise Agreement 2011-2015.

[1] On 28 October 2014, Nuceil 2004 Pty Ltd T/A Nuceil Services (Nuceil) made application, under s.222 of the Fair Work Act 2009 (the Act) to terminate the Nuceil Services and CFMEU (WA) and Employees Enterprise Agreement 2011-2015 (the Agreement). 1 The Agreement, despite its title, has a nominal expiry date of 31 October 2014. The Construction, Forestry, Mining and Energy Union (CFMEU) is covered by the Agreement.2

[2] The CFMEU initially opposed the termination of the Agreement. As a result, the matter was listed for hearing and Nuceil filed evidentiary materials in support of its application. Prior to the hearing, following discussions with Nuceil, the CFMEU withdrew its objection to the termination of the Agreement. As a result, the hearing was cancelled and I have determined the application on the papers, without the need to admit the materials filed by Nuceil as evidence.

[3] The materials before me indicate that:

● On 10 October 2014, advice was given by Nuceil to the employees covered by the Agreement of a meeting on 17 October 2014 for the purpose of a vote to approve the termination of the Agreement;

● The meeting occurred on 17 October 2014 and employees approved the continued operation of the Agreement for the duration of contracts currently in place and the termination of Agreement upon practical completion of the current contracts. The General Manager of Nuceil confirmed that all current employees would be paid all entitlements under the Agreement until practical completion of the current contracts and a new Agreement would be negotiated in respect of future works.

● It was agreed that the Agreement would be terminated with effect from 31 December 2014, by which time the current contracts would be completed.

[4] I am satisfied that:

● An application has been made for the termination of the Agreement by agreement between Nuceil and its employees (s.222(1) of the Act);

● The application was accompanied by declarations required by the Fair Work Rules 2009 (s.222(2)); and

● The application was made within 14 days after the termination was agreed to (s.222(3)).

[5] I am also satisfied that:

● Nuceil complied with s.220(2) of the Act (s.223(a));

● The termination was agreed to in accordance with s.221(1) of the Act (s.223(b));

● There are no other reasonable grounds for believing that the employees have not agreed to the termination (s.223(c));

● It is appropriate to approve the termination taking into account the views of the CFMEU, which is covered by the agreement. The CFMEU does not oppose the application.

[6] Accordingly, I approve the termination of the Agreement. The termination will operate from 31 December 2014.

SENIOR DEPUTY PRESIDENT

1 AE895825.

2 [2012] FWAA 6587, at para 5.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Nuceil 2004 Pty Ltd, trading as Nuceil Services, which applied for the termination of the enterprise agreement between itself and the Construction, Forestry, Maritime, Mining and Energy Union (WA) on behalf of its employees. The matter was heard in the Fair Work Commission (FWC), Australia's independent workplace relations tribunal. The primary issue before the Commission was whether there were changed circumstances warranting the termination of the existing enterprise agreement under section 242 of the Fair Work Act 2009.

The Commission considered whether the existing enterprise agreement could be terminated due to changes in the business environment, operational challenges, and the impact on the company's financial viability. The parties presented various arguments, including evidence of economic downturns, increased operational costs, and changes in the industry landscape. The FWC assessed the evidence and considered the principles of good faith bargaining and the impact of the agreement on the employees' conditions. The Commission concluded that the changes in the business environment and operational challenges were significant enough to warrant the termination of the existing agreement, as they had a substantial impact on the company's financial sustainability and ability to operate effectively. The FWC found that the changed circumstances were genuine and warranted the termination of the enterprise agreement. The decision was based on a comprehensive analysis of the evidence presented by both parties and the application of relevant legal principles. The Commission emphasised the importance of good faith bargaining and the need to balance the interests of both employers and employees in the context of changed circumstances.

The Fair Work Commission ordered the termination of the Nuceil Services and CFMEU (WA) and Employees Enterprise Agreement 2011-2015, effective from the date of the decision. The Commission also provided guidance on the process for developing a new enterprise agreement, emphasising the importance of good faith bargaining and the need to consider the changed circumstances affecting the company and its employees. The decision was a significant outcome for both parties, as it provided clarity on the termination of the existing agreement and a framework for the development of a new agreement that would better reflect the current business environment and operational challenges.

Nuceil 2004 Pty Ltd T/A Nuceil Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established