Parkview Constructions Pty Ltd

[2013] FWCA 7618

[2013] FWCA 7618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Parkview Constructions Pty Ltd
(AG2013/3013)

PARKVIEW CONSTRUCTIONS PTY. LTD ENTERPRISE AGREEMENT 2012 - 2016

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 30 SEPTEMBER 2013

Application to terminate enterprise agreement.

[1] This Decision concerns an application by Parkview Constructions Pty Ltd (the Company) to terminate the Parkview Constructions Pty Ltd Enterprise Agreement 2012-2016 (the Agreement), pursuant to section 222 of the Fair Work Act 2009 (the Act).

[2] The Agreement is identified as AG2012/3013, made on 17 February 2012, with a nominal expiry date of 24 February 2016.

[3] The material before the Tribunal in support of the application to terminate the Agreement consisted of the Form 24 Application and Statutory Declarations of Mr Tony Touma (Managing Director) and Mr Michael Lynch (employee). The Statutory Declaration of Mr Touma advised that the Company and the Construction, Forestry, Mining and Energy Union have been in negotiations for an enterprise agreement (the new Agreement) to replace the Agreement. The new Agreement is known as the Parkview Constructions Pty Ltd/CFMEU Collective Agreement 2013-2015 and was approved by myself (Macdonald C) on 26 September 2013 and is to operate from 3 October 2013.

Relevant Legislation

[4] The Company filed the application pursuant to section 222 of the FW Act. Section 222 is in the following terms:

“222 Application for FWC approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances FWC considers it fair to extend that period—within such further period as FWC allows.”

[5] Section 222(1) requires evidence that the application to terminate the Agreement is by consent, in order to then allow a person to make an application to terminate an enterprise agreement. In that regard, the application was supported by statutory declarations of Mr Tony Touma (Managing Director) and Mr Michael Lynch (employee), advising of consent to the application.

[6] Section 222(2) requires supporting declarations and the two declarations referred to above satisfy this statutory requirement.

[7] Section 222(3)(a) has been satisfied in that the application to terminate the Agreement was made on 20 September 2013 and that was made four days after the ballot was held to terminate the Agreement. Thus, the application to terminate was made within the fourteen day statutory requirement.

[8] Section 223 sets out that Fair Work Commission must approve this application to terminate an enterprise agreement if four stated conditions are met. Section 223 is in the following terms:

“223 When FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWC must approve the termination if:

(a) FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[9] Section 223(a) is satisfied if the Company has complied with section 220(2), which provision goes to the ballot approving process. The Company forwarded the Statutory Declaration of Mr Michael Lynch (an employee) who advised that a ballot by show of hands, took place on 16 September 2013 and that the employees agreed to terminate the Agreement.

[10] Section 223(b) is satisfied when the termination of an enterprise agreement is carried out in accordance with section 221(1) or (2). The former subsection applies in this instance as the enterprise agreement is a single enterprise agreement. Section 221(1) is satisfied in this instance in that the Statutory Declaration of Mr Michael Lynch states that the employees approved of the termination of the Agreement.

[11] Section 223(c) is satisfied in that there is no evidence that there are reasonable grounds for believing that the employees have not agreed to the termination.

[12] Section 223(d) is satisfied in that the employee organisation has provided information confirming their consent to the Company’s application to terminate the Agreement.

Conclusion

[13] I am satisfied, given the foregoing consideration of the relevant legislation and the relevant information provided, that I must approve the termination of the Agreement pursuant to section 223 of the Act.

[12] The termination of the Agreement will take effect from the end of the day, being 2 October 2013.

COMMISSIONER

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