SRG Global Building (Northern) Pty Ltd
[2024] FWCA 961
•19 MARCH 2024
| [2024] FWCA 961 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
ss.225 and 226—Enterprise agreement
SRG Global Building (Northern) Pty Ltd
(AG2024/679)
SRG BUILDING (NORTHERN) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022
| Building, metal and civil construction industries | |
| COMMISSIONER CRAWFORD | SYDNEY, 19 MARCH 2024 |
Application for termination of the SRG Building (Northern) Pty Ltd/CFMEU Collective Agreement 2019 - 2022 – no employees covered - agreement terminated
Background
An application has been made by SRG Global Building (Northern) Pty Ltd (SRG) to terminate the SRG Building (Northern) Pty Ltd/CFMEU Collective Agreement 2019 - 2022 (Agreement) pursuant to ss.225 and 226 of the Fair Work Act 2009 (Cth) (FW Act).
The Agreement’s nominal expiry date is 31 December 2022. The Form F24B application was filed on 28 February 2024 and was accompanied by a Form F24C declaration made by Skye Britton (HR Manager East and New Zealand) on the same date.
Ms Britton’s declaration confirms:
a.The Agreement does not cover any employees.
b.The Agreement has not covered any employees since July 2023.
c.SRG is no longer an employing entity.
d.There are no transferring employees in relation to the Agreement.
The Construction, Forestry and Maritime Employees Union (CFMEU) is covered by the Agreement. On 18 March 2024, the CFMEU confirmed it does not oppose the application and does not seek to be heard on the application.
Statutory provisions
Sections 225, 226 and 227 of the FW Act regulate applications for the Commission to terminate an enterprise agreement after it has nominally expired.
Section 225 of the FW Act states:
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 FW Act states:
Terminating an enterprise agreement after its nominal expiry date
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii)if the agreement contains terms providing entitlements relating to the termination of employees' employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A)However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement ), the FWC must have regard to:
(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b)whether bargaining for the proposed enterprise agreement is occurring; and
(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
Section 227 of the FW Act states:
When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.
Consideration
I am satisfied based on Ms Britton’s uncontested evidence that the Agreement is capable of being terminated in accordance with s.226(1)(b) of the FW Act because the Agreement does not, and is not likely to, cover any employees.
I consider it is appropriate in all the circumstances to terminate the Agreement because there appears to be no further purpose to its existence. The Agreement has not covered any employees since July 2023 and the employer covered by the Agreement is no longer an employing entity. There are no transferring employees that may be affected by the termination of the Agreement.
There are no employees that can provide a view about whether the Agreement should be terminated and no employees that SRG could bargain with for a replacement agreement.
I do not consider there are any other relevant matters to take into account.
Conclusion
Given my findings above, I must terminate the Agreement pursuant to s.226 of the FW Act.
The Agreement is terminated with effect from the date of this decision.
COMMISSIONER
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