Quick Core Consulting Pty Limited T/A Quick Core & Cut Concrete Cutting Services QLD

[2017] FWCA 3742

[2017] FWCA 3742

FAIR WORK COMMISSION

DECISION

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

Quick Core Consulting Pty Limited T/A Quick Core & Cut Concrete Cutting Services QLD
(AG2017/2669)

QUICK CORE CONSULTING PTY LIMITED T/A QUICK CORE & CUT CONCRETE CUTTING SERVICES QLD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 7 AUGUST 2017

Application for termination of the Quick Core Consulting Pty Limited T/A Quick Core & Cut Concrete Cutting Services QLD and CFMEU Union Collective Agreement 2015 - 2019.

[1] On 4 July 2017, Quick Core Consulting Pty Limited T/A Quick Core & Cut Concrete Cutting Services QLD (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Quick Core Consulting Pty Limited T/A Quick Core & Cut Concrete Cutting Services QLD and CFMEU Union Collective Agreement 2015 - 2019 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is as follows:

“223 When the 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, 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.”

[3] The application was supported by a statutory declaration from the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[4] The vote of employees was conducted on 3 July 2017, the same date the employees were consulted in relation to the proposed termination. I made further inquiries of the Employer in relation to how the vote was conducted and why the vote occurred on the same day as the presentation from the Employer.

[5] I was informed that the eight employees who were present to vote on the proposed termination agreed unanimously to have the vote taken that very day. All eligible employees had been presented with copies of written material from the Australian Building and Construction Commission (ABCC) advising that the Agreement had been determined by the ABCC as not meeting the requirements of the Code for the Tendering and Performance of Building Work 2016 (Building Code).

[6] All eight employees present voted to terminate the Agreement. Each eligible employee was issued with a voting slip requesting they confirm ‘yes’ or ‘no’ to terminate the Agreement.

[7] A copy of the letter from the ABCC to the Employer has been provided to this Commission.

[8] The Construction, Forestry, Mining and Energy Union (CFMEU) are an employee organisation which is covered by the Agreement. The Commission is satisfied the Employer communicated with the CFMEU from 1 June 2017 relevant to the ABCC communication. The Employer attempted on numerous occasions to communicate with the CFMEU in an effort to make changes to the Agreement to make the Agreement compliant. On the Employer’s information, the CFMEU did not respond to the Employer.

[9] The CFMEU were invited to provide their views on the application to terminate the Agreement, however no response was received.

[10] In the circumstances, I am satisfied the eight eligible employees who participated in the vote to terminate the Agreement elected to participate in the vote on the same date the Employer proposed the termination. Ordinarily I would not consider a vote on the same day to constitute a reasonable opportunity to decide whether they want to approve the proposed termination. In these circumstances, however, and with the information before the Commission, I am satisfied the employees unanimously agreed to have the vote conducted that very same day, and therefore the employees were provided with a reasonable opportunity to decide whether they wanted to approve the proposed termination.

[11] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[12] The termination will take effect from today, 7 August 2017.

COMMISSIONER

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