Rhino Construction Services Pty Ltd T/A Rhino Construction Services Pty Ltd

[2022] FWCA 3795

[2022] FWCA 3795

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Rhino Construction Services Pty Ltd T/A Rhino Construction Services Pty Ltd

(AG2022/4279)

CFMEU and Angel Power Int Pty Ltd Building and Construction Industry Collective Bargaining Agreement 1999 – 2002

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 OCTOBER 2022

Application for termination of the CFMEU and Angel Power Int Pty Ltd Building and Construction Industry Collective Bargaining Agreement 1999 - 2002

1. This decision concerns an application made by Rhino Construction Services Pty Ltd (Applicant) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the CFMEU and Angel Power Int Pty Ltd Building and Construction Industry Collective Bargaining Agreement 1999 - 2002 (Agreement). The Agreement has passed its nominal expiry date of 30 November 2002. The Applicant is the employer covered by the Agreement.

1. Section 225 of the Act provides as follows:

“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.”

1. 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:

“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. The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s.225(a) of the Act.

1. The   statutory declaration of Mr Bernhard Ziegler (Director) filed with the application states that there are no employees covered by the Agreement.

1. In considering whether it is appropriate to terminate the Agreement, I have considered the views of the CFMEU, an employee organisation covered by the Agreement.  On 13 October 2022 and 18 October 2022, the CFMEU advised that it “does not seek to be heard in relation to this application.”

1. On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

1. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE517985  PR747319>