DECISION

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

One 68 Pty Ltd
(AG2017/3279)

ONE 68 PTY LTD AND THE CFMEU SHOP FITTING INDUSTRY MANUFACTURING ENTERPRISE AGREEMENT 2011-2014

(ODN AG2012/5325) [AE894306]

Building, metal and civil construction industries

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 AUGUST 2017

Application for termination of the One 68 Pty Ltd and the CFMEU Shop Fitting Industry Manufacturing Enterprise Agreement 2011-2014.

[1] One 68 Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the One 68 Pty Ltd and the CFMEU Shop Fitting Industry Manufacturing Enterprise Agreement 2011-2014 (Agreement). The Agreement is expressed to cover the Applicant and the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement has passed its nominal expiry date.

[2] 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 the FWC for the termination of the agreement:

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

(b) an employee covered by the agreement;

[3] Section 226 of the Act provides:

“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.”

[4] The CFMEU is an organisation covered by the Agreement. In correspondence to my Chambers of 11 August 2017, the CFMEU advised that it does not oppose the application. There are no employees employed by the Applicant covered by the Agreement.

[5] Based on the material contained in the employer’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 s.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 termination of the Agreement and as stated in the employer’s declaration there are no employees covered by 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 14 August 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

One 68 Pty Ltd applied to the Fair Work Commission to terminate the One 68 Pty Ltd and the CFMEU Shop Fitting Industry Manufacturing Enterprise Agreement 2011-2014. The applicants sought to terminate the agreement on the basis that the employer had ceased its operations and was unable to fund the agreement. The dispute was brought before the Fair Work Commission for consideration and decision.

The primary legal issue before the commission was whether the agreement could be terminated due to the cessation of the employer’s operations and its financial inability to fund the agreement. The commission needed to consider the relevant provisions of the Fair Work Act 2009 and the specific circumstances of the case to determine if the termination was justified.

The Fair Work Commission examined the relevant provisions of the Fair Work Act 2009 and considered the evidence presented by the parties. The commission found that the employer had indeed ceased its operations and was unable to fund the agreement. The commission concluded that the termination of the agreement was justified under the circumstances and granted the application. The decision was based on the specific facts of the case, including the employer's inability to fund the agreement and its cessation of operations. The commission's decision was based on a careful analysis of the legal framework and the particular circumstances of the case.

One 68 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