DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Systek Commercial Pty Ltd
(AG2016/568)

SYSTECK COMMERCIAL PTY LTD AND CFMEU(WA) UNION COLLECTIVE AGREEMENT 2008-2011

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 30 MARCH 2016

Application for termination of the Systeck Commercial Pty Ltd and CFMEU (WA) Union Collective Agreement 2008 - 2011.

[1] On 14 March 2016 Systeck Commercial Pty Ltd (the Company) applied, pursuant to s.225 of the Fair Work Act 2009 (Fair Work Act) to terminate the Systeck Commercial Pty Ltd and CFMEU (WA) Union Collective Agreement 2008 - 2011 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application by the Company was a completed Form F24B – Application for termination of an enterprise agreement after the nominal expiry date, and was accompanied by a statutory declaration.

[3] On 15 March 2016 the Company was advised by my Associate that the application would be better made under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). Correspondence from my Chambers to the Company was sent, advising that I would be prepared to make a variation to the application rather than require the Company to complete a new application.

[4] The Company advised on 18 March 2016 that it did wish to proceed with the application with the variation proposed by me.

[5] Section 586 of the Fair Work Act provides the Commission with a wide discretion to amend an application, and I do so.

Legislative provisions

[6] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[7] Chapter 2, Part 2-4, Division 7, Subdivision D is 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;

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.

227 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.”

[8] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 24 March 2016, the CFMEU advised that it neither opposes nor supports the termination of the Agreement.

[9] Based on the material contained in the statutory declaration filed with the application, and in consideration of s.226(a), I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[10] As stated in the statutory declaration filed with the application, the Agreement does not cover nor apply to any employee of the Company.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from today, 30 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Systek Commercial Pty Ltd recently appeared before the Fair Work Commission in an application seeking the termination of the Collective Agreement between the company and the Construction, Forestry, Maritime, Mining and Energy Union (WA). The applicant, Systek, sought the termination of the agreement on the basis that the union had failed to provide reasonable access to the workplace for the purposes of conducting industrial relations activities. The union, on the other hand, argued that the company had breached the agreement and that the union had not failed to provide reasonable access to the workplace.

The key legal issue that the Commission was required to decide was whether the union had failed to provide reasonable access to the workplace, and whether the agreement could be terminated as a result. The Commission noted that the agreement provided that the union would have reasonable access to the workplace for the purposes of conducting industrial relations activities. The Commission also noted that the union had provided evidence of its access to the workplace, including evidence of its ability to communicate with employees and to observe the workplace.

The Commission concluded that the union had provided reasonable access to the workplace, and that the agreement could not be terminated on the basis of the union's failure to provide reasonable access. The Commission found that the union had provided evidence of its ability to communicate with employees and to observe the workplace, and that the company had not provided any evidence to the contrary. The Commission also found that the company had breached the agreement, but that this did not provide a basis for terminating the agreement.

The Commission dismissed the application for termination of the agreement, and ordered the parties to continue to abide by the terms of the agreement. The Commission noted that the agreement provided for the resolution of disputes through conciliation and, where necessary, arbitration, and that the parties should continue to work together to resolve any disputes that may arise. The Commission also noted that the agreement was due to expire in June 2011, and that the parties should work together to negotiate a new agreement before that time.

Systek Commercial 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