Sabrina Shopfitting Pty Ltd

[2016] FWCA 623

[2016] FWCA 623

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Sabrina Shopfitting Pty Ltd

(AG2016/2097)

SABRINA CONSTRUCTIONS PTY LTD AND THE CFMEU BUILDING

AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2005-

2008

Building, metal and civil construction industries

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 8 FEBRUARY 2016

Application for termination of the Sabrina Constructions Pty Ltd and the CFMEU Building

and Construction Industry Enterprise Agreement 2005-2008.

[1]        On 15 January 2016 Sabrina Shopfitting Pty Ltd (Applicant) applied, pursuant to

Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009 (Transitional Act) to terminate the Sabrina Constructions Pty Ltd and

the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 (the

Agreement). The Agreement covers the Applicant and employees of the Applicant as

specified in clause 2 of the Agreement. The Agreement has passed its nominal expiry date.

[2]        The Agreement is a collective agreement-based transitional instrument to which Items

15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Items 15 and 16 of

Schedule 3 of the Transitional Act is that the termination of agreement provisions found in

Subdivisions C and D of Division 7 of the Fair Work Act 2009 (the Act) apply to the

Agreement as though a reference to an enterprise agreement included a reference to a

collective agreement-based transitional instrument.

[3]        Section 225 of the Act provides:

“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;

[2016] FWCA 623

(c) an employee organisation covered by the agreement.”

[4]        Section 226 of the Act provides:

“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 FWCis satisfied that it is not contrary to the public interest to do so;

and

(b) the FWCconsiders 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.”

[5]        Based on the material contained in the Applicant’s declaration filed with the

application, I am satisfied that termination of the Agreement is not contrary to the public

interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I

consider that it is appropriate to terminate the Agreement. There is nothing before me which

raises public interest considerations which might militate against the termination of the

Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement,

and I terminate the Agreement.

[6]        The termination will operate from 8 February 2016.

DEPUTY PRESIDENT

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