Sonnah Pty Ltd T/A Goulburn Valley Plaster Products

[2011] FWA 2272

[2011] FWA 2272

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Sonnah Pty Ltd T/A Goulburn Valley Plaster Products
(AG2011/6920)

COMMISSIONER RYAN MELBOURNE, 13 APRIL 2011

Application for termination of an enterprise agreement after its nominal expiry - dismissal of application - non-compliance with directions.

[1] Application has been made by Sonnah Pty Ltd T/A Goulburn Valley Plaster Products (Goulburn Valley Plaster) for termination of the Goulburn Valley Plaster Products and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 (the collective agreement) made under the Workplace Relations Act1996 (the WR Act) and which has passed its nominal expiry date of 31 March 2008.

[2] The application has been made under s.225 of the Fair Work Act 2009 (the FW Act). This provision applies to the termination of a collective agreement made under the Workplace Relations Act by reason of the operation of Item 15 of Part 3 of Schedule 3 of the Fair Work Transitional Provisions and Consequential Amendments) Act 2009.

[3] Sections 225 and 226 provide:

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 FWA 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.

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

[4] The Construction, Forestry, Mining and Energy Union (CFMEU) was involved in the making of the collective agreement and was sent a copy of the application. The CFMEU indicated it would be opposing the granting of the application.

[5] On 11 March 2011 I directed Goulburn Valley Plaster to provide submissions, witness evidence and other material in support of its application by 11 April 2011.

[6] On 11 March 2011 I directed the CFMEU to file submissions in opposition to the granting of the application by 18 April 2011.

[7] Goulburn Valley Plaster did not comply with this direction. A telephone conference was conducted with the applicant and it was agreed that the applicant be given additional time to file its submissions and as such I issued amended directions on 4 April 2011 giving the applicant until 11 April 2011 to file.

[8] No submissions were filed by Goulburn Valley Plaster in compliance with my direction.

[9] As I have no knowledge of the views of the employees covered by the collective agreement nor the circumstances of those employees, including the likely effect that the termination of the collective agreement would have on each of them, (s.226) I cannot properly consider this application as I am required to do under s.226(b). I therefore dismiss the application.

COMMISSIONER

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