The Trustee for Berlyn Family Trust T/A Ableworks Pty Ltd

[2016] FWCA 9268

[2016] FWCA 9268

FAIR WORK COMMISSION

DECISION

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

The Trustee for Berlyn Family Trust T/A Ableworks Pty Ltd
(AG2016/5703)

THE TRUSTEE FOR BERLYN FAMILY TRUST T/AS ABLEWORKS PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015
(ODN AG2012/11829)  [AE897781]

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 DECEMBER 2016

Application for termination of The Trustee for Berlyn Family Trust T/As Ableworks Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015.

[1] The Trustee for Berlyn Family Trust T/A Ableworks Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the The Trustee for Berlyn Family Trust T/As Ableworks Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015 (Agreement). The Agreement is expressed to cover the Applicant, the Construction, Forestry Mining and Energy Union (CFMEU) and its employees. The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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.”

[3] Section 226 of the Act provides:

“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 CFMEU is an organisation covered by the Agreement. In correspondence to my chambers of 20 December 2016, the CFMEU advised that it does not oppose the application. There are employees employed by the Applicant covered by the Agreement. The employees were given an opportunity to oppose the Application by the Applicant. One employee, Mr D Holloway, expressed an objection but further advised my chambers on 29 December 2016 that he did not wish to be heard in relation to his objection.

[5] Based on the material contained in the employer’s declaration 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. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 29 December 2016.

DEPUTY PRESIDENT

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