Spotters Australia Pty Ltd Summary

[2022] FWCA 2661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Spotters Australia Pty Ltd

(AG2022/3116)

Spotters Australia Pty Ltd (“Company”) and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019

(ODN AG2017/5090) [AE426056]

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 AUGUST 2022

Application for termination of the Spotters Australia Pty Ltd (“Company”) and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019

Spotters Australia Pty Ltd (company) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Spotters Australia Pty Ltd (“Company”) and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 (Agreement). The Agreement covers the company and employees engaged in mobile crane hire work (see clauses 2 and 4). It also covers the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreement reached its nominal expiry date on 30 June 2019.

Section 225 of the Act provides that if an enterprise agreement has passed its nominal expiry date, an employer, an employee or an employee organisation covered by the agreement may apply to the Commission to terminate 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 F24C declaration, signed by Mr Ray Castellin, stated that the company no longer provides crane hiring or associated services. The declaration noted however that there remained a number of employees covered by the Agreement. At a telephone mention on 5 August 2022, Mr Castellin clarified that the company has ten employees who are now deployed on other work, including traffic management and electrical spotting. He explained that the company had had some very occasional crane hiring jobs but that it has no such work at present, and it is seeking to dispose of its four cranes. In my view, none of the company’s employees are currently covered by the Agreement, because the company and its employees are not undertaking mobile crane hire work. Because the company has resolved not to continue this line of work, it is unlikely that employees will be covered by the Agreement in the future.

In correspondence to my chambers of 28 July 2022, the CFMMEU advised that it does not oppose the company’s application to terminate the Agreement.

There is nothing before me which raises public interest considerations that might militate against termination of the Agreement. I am satisfied that terminating the Agreement is not contrary to the public interest. Further, 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. In this regard, the view of the employer is that the Agreement should be terminated, the union does not oppose termination, and there are no employees covered by the Agreement.

As I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that it is appropriate to do so, I am required by s 225 of the Act to terminate the Agreement, and I do so. The termination will operate from 12 August 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by the employer, Spotters Australia Pty Ltd, to terminate the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The applicant argued that the agreement had become redundant and was no longer fit for purpose due to significant changes in the industry. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application, asserting that the agreement was still valid and enforceable.

The legal issues before the Commission centred on whether the agreement had indeed become redundant or whether it continued to be fit for purpose. The Commission had to consider whether the changes in the industry were so substantial that they rendered the agreement obsolete. Additionally, the Commission needed to determine if the application was made in good faith and whether it was in the best interest of the employees.

In its decision, the Fair Work Commission found that while there had been significant changes in the industry, these changes did not render the agreement entirely redundant. The Commission held that the agreement could be adapted to accommodate the new circumstances, and therefore, it was not appropriate to terminate the agreement at that time. The Commission emphasised the importance of maintaining fair and effective enterprise agreements to protect the interests of employees, especially in rapidly changing industries. Consequently, the application to terminate the agreement was dismissed.

No specific orders were made by the Commission in this instance, as the application for termination was rejected. The CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 remains in effect, subject to any future negotiations or amendments as may be required.

Spotters Australia Pty Ltd

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