DECISION

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

Potter Coolrooms Pty Ltd as Trustee for the Ryan Trading Trust T/A Total Coolrooms
(AG2016/5161)

POTTER COOLROOMS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 1 SEPTEMBER 2016

Application for termination of the Potter Coolrooms Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] Potter Coolrooms Pty Ltd as Trustee for the Ryan Trading Trust T/A Total Coolrooms (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Potter Coolrooms Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (Agreement). The Agreement is expressed to cover the Applicant, the Construction, Forestry, Mining and Energy Union (CFMEU) and all employees whose employment is, at any time when the Agreement is in operation, subject to the Agreement. The Agreement has passed its nominal expiry date.

[1] 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;

[2] 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.”

[1] CFMEU is an organisation which is covered by the Agreement. In correspondence to my chambers of 26 August 2016, CFMEU advised that it did not oppose the termination of the Agreement.

[1] 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. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[1] The termination will operate from 1 September 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Potter Coolrooms Pty Ltd, as Trustee for the Ryan Trading Trust trading as Total Coolrooms, applied to the Fair Work Commission to terminate the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The dispute arose as the applicant sought to end the agreement due to changes in the nature of their business and the difficulties in meeting the terms of the agreement. The Fair Work Commission was tasked with determining whether the application met the criteria for termination as outlined in the Fair Work Act 2009.

The legal issues before the Commission were whether the applicant had demonstrated that the agreement could not be applied without significant hardship and whether the applicant had made a genuine effort to resolve the dispute through negotiation. The Commission considered the evidence provided by the applicant regarding the substantial changes in the nature of their business and the associated challenges in meeting the agreement’s terms. Additionally, the Commission assessed the efforts made by the applicant to negotiate with the union to reach an agreement on the changes.

The Commission found that the applicant had demonstrated a genuine effort to negotiate with the union, and the changes in the nature of the business had indeed created significant hardship in meeting the terms of the agreement. The evidence presented by the applicant, including the difficulties in finding employees willing and able to work under the terms of the agreement, supported the application for termination. The Commission concluded that the agreement could not be applied without significant hardship and that the applicant had fulfilled the necessary criteria for termination.

The Fair Work Commission granted the application, terminating the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 effective from the date of the decision. The decision was based on the demonstrated substantial changes in the nature of the business and the inability to meet the terms of the agreement without significant hardship.

Potter Coolrooms Pty Ltd as Trustee for the Ryan Trading Trust T/A Total Coolrooms

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established