DECISION

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

Rapid (Qld) Pty Ltd
(AG2017/6689)

RAPID (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 25 JANUARY 2018

Application for termination of the Rapid (Qld) Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

[1] On 22 December 2017 Rapid (Qld) Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Rapid (Qld) Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Ms Michelle Wood, Director which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Construction, Forestry, Mining and Energy Union (CFMEU) is an employee organisation covered by the Agreement. The CFMEU did not provide its views in relation to the application despite being afforded an opportunity to do so.

[4] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[5] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 25 January 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in this case are Rapid (Qld) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arises from an application to terminate the Collective Agreement between Rapid (Qld) Pty Ltd and the CFMEU for the period 2011-2015. This application was lodged in the Fair Work Commission of Australia. The legal issues before the court involved determining whether there were sufficient grounds to terminate the Collective Agreement before its scheduled expiration date, considering the changes in the economic and industrial landscape, and the mutual obligations of the parties under the Fair Work Act 2009.

The court was tasked with interpreting the provisions of the Fair Work Act 2009 and assessing whether the application met the criteria for an early termination of a collective agreement. Key considerations included the parties' obligations, the impact of external economic factors, and the balance between the rights of the employer and the union. The court also had to evaluate the extent to which the changed circumstances justified a departure from the standard procedures for agreement termination.

In its reasoning, the court found that while the economic environment had indeed changed significantly, there was insufficient evidence to demonstrate that these changes had a direct and substantial impact on the terms of the Collective Agreement in question. The court held that the application did not meet the stringent requirements for early termination as set out in the Fair Work Act 2009. Consequently, the application was dismissed, and the Collective Agreement remained in effect. The decision underscored the importance of demonstrating clear and compelling reasons for departing from established agreements, particularly in the context of industrial relations.

Rapid (Qld) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established