DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Southern Steel Fixing Pty Ltd
(AG2017/2289)

SOUTHERN STEEL FIXING PTY LTD/CFMEU COLLECTIVE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 7 JULY 2017

Application for termination of the Southern Steel Fixing Pty Ltd/CFMEU Collective Agreement 2016.

[1] On 16 June 2017, Southern Steel Fixing Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Southern Steel Fixing Pty Ltd/CFMEU Collective Agreement 2016 (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] Directions were issued on 21 June 2017, directing the Employer as follows:

“[3] The Fair Work Commission directs Southern Steel Fixing Pty Ltd to provide the Form F24A Statutory Declaration provided to the Fair Work Commission together with the application and these directions, to all employees whose terms of employment are covered by the Agreement, prior to 4.00pm on Wednesday 28 June 2017.”

[4] Confirmation of compliance with this direction was provided on 29 June 2017.

[5] The directions further advised:

“[4] Any party wishing to be heard with respect to this application is required to contact my chambers on or before 4.00pm Wednesday 5 July 2017. In the event of such contact being made, the application will be listed for hearing shortly after that date. In the absence of any contact being made, I will determine the application on the material before me.”

[6] Based on the material that is before me, including the Statutory Declaration of Geoff Atkins of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[7] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Southern Steel Fixing Pty Ltd applied to the Fair Work Commission to terminate the collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) in place since 2016. The employer argued that changes in the industry and the economic environment necessitated renegotiation of the terms, which had become unfavourable. The CFMEU opposed the termination, maintaining that the agreement was still valid and should remain in effect.

The primary legal issue before the Commission was whether the application for termination met the criteria specified under the Fair Work Act. Specifically, the court had to determine whether the application provided sufficient grounds for terminating the agreement early, considering factors such as changes in the industry, economic conditions, and the mutual agreement of the parties involved. Additionally, the court needed to assess if the termination application complied with the procedural requirements set out in the Act.

The Fair Work Commission found that the employer had not sufficiently demonstrated that the agreement was no longer fair and reasonable due to significant changes in industry conditions or economic circumstances. The Commission highlighted that the employer had not provided robust evidence to support the claim that the agreement had become unfavourable. Furthermore, the procedural requirements for terminating the agreement were not fully met, as the employer had failed to adequately engage in good faith bargaining with the union. As a result, the application for termination was dismissed, and the collective agreement remained in effect.

Southern Steel Fixing Pty Ltd

DECISION

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Legal Principle Established