DECISION

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

Paper Wheels Pty Ltd T/A Paperwheels
(AG2015/7442)

PAPER WHEELS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 17 DECEMBER 2015

Application for termination of the Paper Wheels Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011.

[1] On 30 November 2015 Paper Wheels Pty Ltd T/A Paperwheels (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Paper Wheels Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 (the Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date was 31 August 2011.

[3] The relevant provisions of the Act are as follows:

‘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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement.’

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the Agreement. Correspondence was received from the CFMEU on 15 December 2015 advising that it did not oppose the termination of the Agreement.

[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 and as stated in the Applicant’s declaration the Agreement does not cover nor apply to any employee of Paper Wheels Pty Ltd T/A Paperwheels. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Paper Wheels Pty Ltd trading as Paperwheels, sought the termination of the CFMEU Building and Construction Industry Enterprise Agreement 2011. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application. The dispute was heard in the Fair Work Commission, an Australian labour relations tribunal. The central legal issue revolved around the applicability and validity of the Enterprise Agreement in the context of the applicant's business operations and the requirements under the Fair Work Act 2009.

The Fair Work Commission considered whether Paper Wheels Pty Ltd was appropriately covered by the Enterprise Agreement and if there were grounds for termination. The applicant argued that it was not a construction entity and therefore should not be bound by an agreement specific to the construction industry. The respondent contended that the agreement should apply as Paper Wheels Pty Ltd's activities involved construction elements. The Commission examined the definitions and scope of the agreement, the nature of Paper Wheels Pty Ltd's business, and the extent of its construction-related activities. The Commission found that Paper Wheels Pty Ltd's operations did not predominantly involve construction work as defined under the agreement, and thus, the agreement did not apply to it. Consequently, the application for termination was successful.

The Fair Work Commission terminated the Paper Wheels Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011. The decision was based on the determination that Paper Wheels Pty Ltd was not a construction entity as defined in the agreement. The Commission found that the applicant's activities did not predominantly involve construction work, thereby invalidating the application of the Enterprise Agreement to the company.

Paper Wheels Pty Ltd T/A Paperwheels

DECISION

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