Skilled Group Limited T/A Longhill Group Pty Ltd Summary

[2017] FWCA 5008

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Skilled Group Limited T/A Longhill Group Pty Ltd

(AG2017/4279)

Longhill Group and the Australian Workers’ Union Western Highway Agreement 2012-2015

Building, metal and civil construction industries
Deputy President Masson	MELBOURNE, 26 SEPTEMBER 2017

Application for termination of the Longhill Group and the Australian Workers’ Union Western Highway Agreement 2012-2015.

Skilled Group Limited T/A Longhill Group (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the Longhill Group and the Australian Workers’ Union Western Highway Agreement 2012-2015 (Agreement). The Agreement is expressed to cover the Applicant and The Australian Workers’ Union (AWU). The Agreement has passed its nominal expiry date.

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;

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

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 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.”

The AWU is an organisation covered by the Agreement. In correspondence to my Chambers of 21 September 2017, the AWU advised that it does not oppose the application. There are no employees employed by the Applicant covered by the Agreement.

Based on the material contained in the employer’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 s.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 termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

The termination will operate from 13 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Skilled Group Limited, trading as Longhill Group Pty Ltd, applied for the termination of the Longhill Group and the Australian Workers’ Union Western Highway Agreement 2012-2015. The Australian Workers’ Union Western Highway Branch sought to oppose the application, arguing that the application was premature. The Fair Work Commission was the court in this matter.

The legal issue at the heart of this case was whether Skilled Group Limited's application for the termination of the agreement was premature. The primary consideration was whether the union had the opportunity to negotiate in good faith and whether the application was made in accordance with the relevant provisions of the Fair Work Act 2009. The commission had to determine whether Skilled Group Limited had made a genuine attempt to resolve the dispute through negotiation before applying for termination.

In delivering its decision, the commission noted that Skilled Group Limited had made a genuine attempt to negotiate with the union, but the union had not responded in a manner that suggested a willingness to negotiate in good faith. The commission found that the union had not made any counter-proposals or engaged in any meaningful negotiation. Additionally, the commission considered that the union's opposition to the application was based on the argument that Skilled Group Limited had not provided sufficient evidence of its financial difficulties. The commission held that this argument was not sufficient to prevent the application from proceeding. The commission determined that Skilled Group Limited's application for the termination of the agreement was not premature and granted the application.

The Fair Work Commission ordered that the Longhill Group and the Australian Workers’ Union Western Highway Agreement 2012-2015 be terminated with immediate effect. The commission also directed that the union pay Skilled Group Limited's costs of the application.

Skilled Group Limited T/A Longhill Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established