Shamrock Civil Engineering Pty Ltd

[2013] FWCA 7123

FAIR WORK COMMISSION

DECISION

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

Shamrock Civil Engineering Pty Ltd
(AG2013/8814)

SHAMROCK CIVIL ENGINEERING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 SEPTEMBER 2013

Application for termination of the Shamrock Civil Engineering Pty Ltd and CFMEU union collective agreement 2011-2015.

[1] On 28 August 2013 Shamrock Civil Engineering Pty Ltd filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Shamrock Civil Engineering Pty Ltd and CFMEU union collective agreement 2011-2015 (“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 provided by the employer, 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

Shamrock Civil Engineering Pty Ltd, an engineering and construction company, applied to the Fair Work Commission (FWC) for the termination of the collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) effective from 1 April 2020. The FWC was required to consider the application under section 239 of the Fair Work Act 2009. The company argued that the agreement had become out of date and no longer reflected the current employment landscape, while the union contended that the agreement was still relevant and should be allowed to continue.

The FWC examined the criteria for terminating the agreement early, considering the purpose of the Act and the need for flexibility in employment arrangements. The FWC acknowledged the changes in the industry since the agreement was signed in 2011 but found that the union had made reasonable efforts to negotiate a new agreement with the company. The FWC held that the application did not meet the threshold for termination and dismissed the application. The FWC emphasised that the agreement should be allowed to continue until its natural expiry, allowing for the parties to negotiate a new agreement that reflects the current industry conditions.

The FWC's decision highlighted the importance of the negotiation process and the role of the FWC in ensuring fair and reasonable outcomes for both employers and employees. The decision also emphasised the need for parties to make reasonable efforts to negotiate new agreements, even in the face of changing industry conditions. The FWC's decision ensured that the agreement would continue until its natural expiry, providing stability and certainty for both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established