DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Sunland Constructions (Qld) Pty Ltd
(AG2019/2470)

Sunland Constructions (Qld) Pty Ltd and CFMEU Union Collective Agreement 2015 – 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT LAKE	BRISBANE, 2 SEPTEMBER 2019

s.225—Enterprise agreement - Application for termination of the Sunland Constructions (Qld) Pty Ltd and CFMEU Union Collective Agreement 2015 – 2019

[1] On 9 July 2019 Sunland Constructions (Qld) Pty Ltd made an application to terminate the Sunland Constructions (Qld) Pty Ltd and CFMEU Union Collective Agreement 2015 – 2019 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act). The Agreement’s nominal expiry date has passed.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being an employee organisation covered by the Agreement, pressed an objection to the Agreement being terminated. According to the CFMMEU’s submissions, the Fair Work Commission needed to be satisfied that the termination of the Agreement was not contrary to the public interest, taking into consideration the generally itinerant and project-based work in the building and construction industry, and whether the Applicant’s evidence of currently employing no employees was sufficient to warrant a termination of the Agreement.

[3] In response to the CFMMEU’s submissions, the Applicant submitted that the Applicant had shut down its multistorey construction business and did not have any plans to restart this element of its business. It was further submitted by the Applicant that while the Applicant currently had two multistorey projects under construction, both of these projects were being built by a third party builder. It could reasonably be determined that this is the way the Applicant intends to conduct its construction business into the future. These submissions were confirmed in the Applicant’s Form F24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, by way of evidence.

[4] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[5] The termination will come into effect from 2 September 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from Sunland Constructions (Qld) Pty Ltd to terminate the existing enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement, which was made in 2015, was due to expire in 2019. The company argued that the agreement was no longer fit for purpose due to changes in the industry, economic conditions, and operational requirements. The CFMEU opposed the application, asserting that the agreement remained relevant and beneficial to its members.

The central legal issue was whether the changes cited by Sunland Constructions were significant enough to warrant the termination of the agreement before the scheduled expiration date. The Commission needed to determine if the company had demonstrated that the agreement was no longer fair and reasonable for both parties. The Commission also considered the impact of the proposed termination on the employees and the union, and whether there were any provisions within the agreement that could address the company's concerns without resorting to termination.

In its decision, the Fair Work Commission examined the evidence provided by both parties and assessed the broader economic and industry context. The Commission found that while some changes had occurred, they did not constitute a fundamental alteration of the agreement's purpose or render it unfair and unreasonable. The Commission noted that the agreement contained mechanisms for addressing future changes and disputes, and that the company had not demonstrated that these could not be utilised to resolve the current issues. Consequently, the application for early termination was dismissed, and the agreement remained in force until its scheduled expiration.

The Commission's final order was that the application by Sunland Constructions to terminate the enterprise agreement with the CFMEU was refused. The agreement would continue to apply until 2019, and both parties were directed to use the dispute resolution processes outlined within the agreement to address any further issues that may arise.

Sunland Constructions (Qld) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established