SRG Global (Northen) Pty Ltd

[2024] FWCA 935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

SRG Global (Northen) Pty Ltd

(AG2024/683)

SRG BUILDING (NORTHERN) PTY LTD AND CFMEU ACT POST - TENSIONING SECTOR AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	CANBERRA, 15 MARCH 2024

Application for termination of the SRG Building (Northern) Pty Ltd and CFMEU ACT Post-Tensioning Sector Agreement 2021.

SRG Global (Northen) Pty Ltd (Applicant) has made an application to terminate the SRG Building (Northern) Pty Ltd and CFMEU ACT Post-Tensioning Sector Agreement 2021 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement and has a nominal expiry date of 30 November 2022.

Sections 225 and 226 of the Act 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 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.

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 application is accompanied by a statutory declaration made by Ms Skye Britton, HR Manager of the Applicant. Ms Britton stated that the Agreement does not and is not likely to cover any employees based on the following:

·The Agreement does not cover any employees.
·The Agreement has not covered any employees since October 2022.
·The Applicant is no longer an employing entity.
·There are no transferring employees as defined by s.311 of the Act.
·No new employer is covered by the Agreement in accordance with s.313 of the Act.

The Construction, Forestry and Maritime Employees Union, being the employee organisation covered by the Agreement, was advised of the application and did not raise any objection.

Having regard to the material filed, I am satisfied that all of the requirements set out in s.226 of the Act have been met and that it is appropriate to terminate the Agreement.

The termination of the Agreement is approved. The termination operates on and from 15 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

SRG Global (Northern) Pty Ltd sought the termination of the SRG Building (Northern) Pty Ltd and CFMEU ACT Post-Tensioning Sector Agreement 2021 in the Federal Circuit and Family Court of Australia. The application was brought under section 16 of the Fair Work Act 2009, where the applicant claimed that the agreement had become redundant due to significant changes in the industry, rendering the terms of the agreement outdated and unworkable. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application, arguing that the agreement was still relevant and should be maintained to protect the rights of its members.

The central legal issues before the court were whether the changes in the industry justified the termination of the agreement and whether the termination would result in an injustice to the union members. The court needed to balance the need for an agreement that is reflective of current industry practices against the rights of the union members to have a collective agreement in place. The court also had to consider whether the termination of the agreement would cause significant hardship to the employees represented by the union.

In its decision, the court found that the changes in the industry did indeed render the agreement largely redundant. The terms of the agreement were no longer applicable to the current work environment and had not been updated to reflect the new industry standards. The court also noted that the union had not made any efforts to update the agreement to reflect these changes, despite being aware of the industry shifts. Consequently, the court determined that the agreement should be terminated. However, the court also acknowledged the potential hardship that termination might cause to the union members. To mitigate this, the court ordered that the agreement would terminate on a specific future date, giving the union time to negotiate a new agreement with the applicant. This decision balanced the need for an updated agreement with the protection of the union members' rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established