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;

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Trustee for Berlyn Family Trust T/A Ableworks Pty Ltd applied to terminate its membership with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and to cease being bound by the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. The dispute was heard in the Fair Work Commission. The central legal issue before the court was whether the applicant could be lawfully released from its membership and the associated enterprise agreement. This required the court to consider the terms of the agreement, the principles of freedom of association, and the specific conditions under which such a termination could be granted.

The court examined the provisions of the Fair Work Act 2009 and the applicable enterprise agreement to determine if the applicant qualified for termination. The agreement stipulated that termination could occur if certain conditions were met, such as a change in the applicant’s circumstances that made continued membership impractical or unjust. The applicant argued that its financial difficulties and operational changes made continued adherence to the agreement untenable. The court weighed these arguments against the union’s interest in maintaining membership and the broader principles of collective bargaining.

After reviewing the evidence and the legal framework, the court concluded that the applicant met the criteria for termination. It found that the applicant's financial difficulties and operational changes were significant enough to justify releasing it from the enterprise agreement. The court emphasised the importance of maintaining a balance between the rights of employers to manage their businesses and the rights of employees to be represented by a union. In light of this, the court ruled that the applicant could terminate its membership and cease to be bound by the enterprise agreement.

The court ordered that the applicant be released from its membership with the CFMEU and from the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. This decision provided the applicant with the relief it sought, allowing it to operate without the constraints of the enterprise agreement. The ruling also highlighted the need for careful consideration of the circumstances of each party when deciding such applications.

The Trustee for Berlyn Family Trust T/A Ableworks 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