QR Contracting Pty Ltd

[2020] FWCA 5375

[2020] FWCA 5375

FAIR WORK COMMISSION

DECISION

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

QR Contracting Pty Ltd
(AG2020/2818)

QR CONTRACTING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 8 OCTOBER 2020

Application for termination of the QR Contracting Pty Ltd and CFMEU Union Collective Agreement 2018-2019.

[1] Contracting Pty Ltd (the Applicant) to terminate the QR Contracting Pty Ltd and CFMEU Union Collective Agreement 2018-2019 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 1 January 2019.

[3] Sections 225 and 226 of the Fair Work Act 2009 (the Act) relevantly provide:

“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;

(c) an employee organisation covered by the agreement.

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] Mr Ashley Johnson, Operations Manager for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Johnson stated that the Applicant sought the termination of the Agreement on the basis that no employees are currently employed by the Applicant under this agreement and the agreement is no longer relevant for the civil construction sector in Queensland and the Northern Territory.

[5] The Applicant submitted the Agreement may restrict the ability of the contractor to secure employment opportunities in the civil construction sector. In submissions filed by the Applicant on 28 September 2020, it was submitted that the Applicant subcontracts all manual tasks and provides supervision by direct workforce, which is not covered by the Agreement.

[6] The Applicant further submitted they are considering future employment options that reflects contemporary market conditions and that the maintenance of the expired agreement, which does not reflect the altered market that is faced by the Applicant, is contrary to the public interest.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was a party to the Agreement. I issued Directions on 21 September 2020 requesting the CFMMEU to advise whether they supported termination of the Agreement or opposed the termination. On 7 October 2020, Mr Paul Dunbar, an Industrial Officer for the CFMMEU, wrote to my Chambers and advised that the CFMMEU did not wish to be heard in relation to this application.

[8] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 8 October 2020.

[9] I Order accordingly.

COMMISSIONER

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