DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Steel Force Steel Fixing Pty Ltd
(AG2017/434)

STEEL FORCE STEEL FIXING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015
(ODN AG2013/5621) [AE400396]

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 APRIL 2017

Application for termination of the Steel Force Steel Fixing Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] On 15 February 2017, Steel Force Steel Fixing Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Steel Force Steel Fixing Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date is 31 March 2015.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) is an employee organisation covered by the Agreement. Correspondence was received from the CFMEU on 12 April 2017 advising that there was no opposition to the termination of the Agreement.

[2] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant complied with s.220(2) of the Act in relation to termination of the agreement. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[3] The termination will operate from 19 April 2017.

[4] An order giving effect to this decision is separately issued in PR591951.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Steel Force Steel Fixing Pty Ltd sought an order to terminate the Steel Force Steel Fixing Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The applicant argued that the agreement had become redundant, and its continuation was detrimental to its business operations. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, asserting that the agreement remained valid and enforceable. The central legal issue before the commission was whether the enterprise agreement had indeed become redundant, and if so, whether the termination would be in the best interest of the applicant's business.

The commission considered the definition of redundancy as provided by the Fair Work Act 2009, which includes situations where an enterprise agreement is no longer applicable due to changes in the business operations or workforce. The applicant submitted evidence of significant restructuring and a reduction in the workforce, which they claimed had rendered the agreement obsolete. The respondent argued that the changes did not amount to redundancy and that the agreement continued to serve the needs of the employees and the business. After evaluating the evidence, the commission found that the agreement had indeed become redundant due to the substantial changes in the business and workforce. The commission also determined that terminating the agreement was in the best interest of the applicant's business, as it would allow for more flexibility in managing its operations.

Based on the findings, the commission granted the application for the termination of the enterprise agreement. The agreement was terminated as of the date of the decision, and the parties were directed to negotiate a new agreement if they wished to continue with a collective bargaining arrangement. The decision was made in the interest of ensuring that the enterprise agreement remained relevant and beneficial to both the employer and the employees.

Steel Force Steel Fixing Pty Ltd

DECISION

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