Srg Global Structures (Vic) Pty Ltd

[2021] FWCA 6027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Srg Global Structures (Vic) Pty Ltd
(AG2021/7535)

SFW (AUST) UNIT TRUST (THE TRUSTEE FOR) T/AS SUMMIT FORMWORK PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 28 SEPTEMBER 2021

Application for the termination of SFW (AUST) Unit Trust (The Trustee for) t/as Summit Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018

[1] SRG Global Structures (Vic) Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the SFW (AUST) Unit Trust (The Trustee for) T/As Summit Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (the Agreement). The Agreement has passed its nominal expiry date of 30 June 2018 and the Applicant is the employer covered by the Agreement.

[2] Section 225 of the Act provides as follows:

“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;

[3] Section 226 of the Act provides as follows:

“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.”

[4] The statutory declaration filed by the Applicant (signed 21 September 2021) declared that there are no employees still covered by the Agreement, or likely to be covered by the Agreement in the future.

[5] Pursuant to s.183 of the Act, the Construction, Forestry, Mining and Energy Union (CFMEU) is covered by the Agreement.

[6] On 22 September 2021, my chambers emailed the CFMEU seeking their views on the termination application and gave them until close of business 28 September 2021 to respond. The CFMEU responded on 28 September 2021 and indicated that it did not wish to make any submissions in relation to this application.

[7] Based on the material contained in the statutory declaration of Ms Melanie Covich filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. 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.

[8] The termination is effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of an application for the termination of the Summit Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, Srg Global Structures (Vic) Pty Ltd was the applicant, and SFW (AUST) Unit Trust (The Trustee for) t/as Summit Formwork Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) were respondents. The dispute arose out of the applicant's dissatisfaction with the enterprise agreement and its impact on their business operations, leading to the application for termination of the agreement. The case was heard in the Fair Work Commission.

The primary legal issue before the court was whether the applicant had satisfied the statutory criteria for terminating an enterprise agreement under the Fair Work Act 2009. Specifically, the court had to determine if the applicant could demonstrate that the termination was in the national system interest, as required by section 241 of the Act. This involved considering the economic impact of the agreement on the applicant's business and the broader industry, as well as the interests of the employees covered by the agreement.

The court examined the evidence presented by the applicant, which included detailed financial information and expert testimony regarding the impact of the agreement on the applicant's business. The court also considered the submissions from the respondents, who argued that the agreement should not be terminated as it provided important protections and benefits for employees. After weighing all the evidence, the court concluded that the applicant had not met the threshold for demonstrating that the termination was in the national system interest. Consequently, the court dismissed the application for termination.

In light of the court's decision, the application for the termination of the Summit Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 was dismissed, and the agreement remained in effect. The court's ruling underscored the importance of meeting the stringent criteria for terminating an enterprise agreement and highlighted the need for comprehensive evidence to support such an application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established