[2016] FWCA 1483

The attached document contains the name of the Agreement in the Preamble and replaces the document previously issued with the above code on 7 March 2016.

Brendan Pearce

Associate to Senior Deputy President Richards

Dated 10 March 2016

[2016] FWCA 1483

FAIR WORK COMMISSION

DECISION

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

Seymour Whyte Constructions Pty Ltd
(AG2016/2405)

Seymour Whyte Constructions Civil Employee Enterprise Agreement 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 MARCH 2016

Application for termination of the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2013.

[1] On 29 February 2016 Seymour Whyte Constructions Pty Ltd (“the Employer”) filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2013 (“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:

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 were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Seymour Whyte Constructions Pty Ltd applied to the Fair Work Commission for the termination of the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2013. The application was made on the basis that significant and unforeseeable circumstances had arisen, which made the continued operation of the agreement unfair and unreasonable. The applicant argued that the agreement could no longer be operated in a fair and reasonable manner due to these changes. The respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, contending that the circumstances cited did not warrant termination of the agreement.

The legal issues before the Commission centred on whether the changes in circumstances were significant, unforeseeable, and whether they rendered the agreement unfair and unreasonable to the extent that termination was warranted. The Commission needed to assess whether the applicant had discharged the onus of proving that the changes were of such a nature that the continued operation of the agreement would be unfair and unreasonable. Additionally, the Commission had to consider the impact of these changes on the parties and whether any alternative measures could be employed to address the issues without resorting to termination.

The Fair Work Commission found that the changes in circumstances were indeed significant and unforeseeable, leading to a substantial shift in the balance of the agreement. The Commission determined that the changes had made the continued operation of the agreement unfair and unreasonable, as the agreement could no longer be operated in a manner that was fair to both parties. The Commission concluded that the applicant had met the necessary criteria for termination, and it was in the best interests of all parties to terminate the agreement. The Commission allowed the application and terminated the agreement, with the termination taking effect from a specified date.

The final orders of the Commission included the termination of the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2013, effective from a specified date, and the setting aside of any provisions in the agreement that conflicted with the termination. The Commission also made orders concerning the notice period for termination, ensuring that both parties were aware of their obligations and entitlements following the termination of the agreement.

Seymour Whyte Constructions 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