Roofmasters Pty Ltd

[2013] FWCA 8133

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Roofmasters Pty Ltd
(AG2013/2806)

ROOFMASTERS WORKPLACE AGREEMENT 2007

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 16 OCTOBER 2013

Application for termination of a collective agreement-based transitional instrument.

[1] On 11 September 2013 Roofmasters Pty Ltd filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”)to terminate the Roofmasters Workplace Agreement 2007 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[5] In accordance with s.227 of the FW Act, the termination will take effect from 16 October 2013.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In Roofmasters Pty Ltd, the Fair Work Commission considered an application by the employer to terminate a transitional instrument that was established under a collective agreement. The applicant, Roofmasters, sought the termination of a specific clause in the transitional instrument that provided for a minimum hourly rate of pay for certain employees. The dispute arose from changes in the business environment and the employer's contention that the continued application of the transitional instrument was no longer fair and reasonable.

The central legal issue before the Commission was whether the transitional instrument, which had been agreed upon under a collective agreement, could be terminated. The Commission needed to determine if the changes in the business circumstances warranted the termination of the clause that set a minimum hourly rate for the affected employees. Additionally, the Commission had to consider whether the continued operation of the transitional instrument was still fair and reasonable under the circumstances.

The Commission examined the evidence presented by Roofmasters and the arguments made by the union representing the employees. It assessed the impact of the changed business environment on the company and the employees. The Commission concluded that the changes in the business circumstances were significant enough to warrant the termination of the transitional instrument. The continued operation of the clause was deemed to be no longer fair and reasonable, given the financial strain it placed on the employer. Consequently, the Commission granted the application to terminate the transitional instrument. The decision was based on the balance of fairness and the need to adapt to the new business realities while also considering the rights of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established