Quality Styles Builders Pty Ltd T/A Quality Styles Builders

[2015] FWC 5835

[2015] FWC 5835

FAIR WORK COMMISSION

DECISION

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

Quality Styles Builders Pty Ltd T/A Quality Styles Builders
(AG2015/2929)

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 25 AUGUST 2015

Application for termination of the Quality Styles Builders Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 – application dismissed.

[1] On 5 June 2015, Quality Styles Builders Pty Ltd (the Applicant) made an application to terminate the Quality Styles Builders Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 1 (the Agreement) under s.222 of the Fair Work Act 2009 (the Act).

[2] Section 222 – Application for the FWC’s approval of a termination of an enterprise agreement, is in the following terms:

“Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the 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 the FWC considers it fair to extend that period—within such further period as the FWC allows.”

[3] Section 223 – When the FWC must approve a termination of an enterprise agreement, is in the following terms:

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

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

(d) the 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.

[4] An application under s.222 of the Act can only be approved where a majority of employees covered by the agreement have voted and approved the termination of the agreement.

[5] On 9 June 2015, the Associate to Senior Deputy President Watson wrote to the Applicant indicating that the application was incomplete and that a Form F24A – Statutory Declaration was required to be filed and that the Construction, Forestry, Mining and Energy Union (CFMEU) who is a party to the Agreement needed to be served with the application and evidence of such service was to be provided to the Fair Work Commission (the Commission) as soon as practicable.

[6] Rule 26(1) of the Fair Work Commission Rules 2013 (the Rules) requires that:

“An application under section 222 of the Act for approval of termination of an enterprise agreement or a collective agreement-based transitional instrument must be accompanied by a statutory declaration made by an officer or authorised employee of the applicant setting out the basis upon which the Commission can be satisfied that the requirements of section 223 of the Act have been met.”

[7] On 2 July 2015, correspondence was sent from my Associate to the Applicant advising that I had carriage of the matter. The CFMEU was also copied in to that correspondence. The Applicant was also advised that further to the correspondence of 9 June 2015 the application to terminate the agreement would be better made under s.225 of the Act – Application for termination of an enterprise agreement after its nominal expiry date.

[8] Section 225 of the Act is in the following terms:

“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.”

[9] Section 226 of the Act provides that:

“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.”

[10] The Applicant was also requested to advise that if a new application under s.225 of the Act was to be made it was required to advise my Chambers by 10 July 2015 indicating the s.222 application was to be withdrawn.

[11] On 10 July 2015, the CFMEU advised that it did not wish to oppose the application.

[12] On 31 July 2015, my Associate again wrote to the Applicant seeking advice on how it wished to proceed and if no response was received the application would be dismissed. All correspondence to the Applicant contained the necessary documentation to aid the Applicant in filing the proper application.

[13] Notwithstanding repeated requests to the Applicant, Quality Styles Builders Pty Ltd, to provide the required documentation, I have therefore determined the matters on the papers and I am unable to reach a view as to the appropriateness of the termination of the Agreement. Further, in considering the application there is nothing to indicate that there are any employees who would vote in favour of the termination of the agreement.

[14] Section 587 of the Act allows for the Commission to dismiss an application on the ground that it was not filed in accordance with the Act. Section 587(1) is in the following terms:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[15] In this case the Applicant has failed to respond to any correspondence from the Commission and failed to provide the necessary documentation that would allow its application to be dealt with properly and which would ensure procedural fairness.

[16] In those circumstances, the application for termination of the Agreement is dismissed.

DEPUTY PRESIDENT

 1   AE895137.

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