The Trustee for Bopage Family Trust T/A Shine Concrete Pty Ltd

[2019] FWC 2840

[2019] FWC 2840

The attached document replaces the document previously issued with the above code on 29 April 2019.

The Print Reference has been amended to read PR707383.

Jessica Awad

Associate to Deputy President Gostencnik

Dated 29 April 2019

[2019] FWC 2840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Trustee for Bopage Family Trust T/A Shine Concrete Pty Ltd
(AG2016/2532)

THE TRUSTEE FOR BOPAGE FAMILY TRUST T/AS SHINE CONCRETE PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 APRIL 2019

Application for termination of The Trustee For Bopage Family Trust T/As Shine Concrete Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] The Trustee for Bopage Family Trust T/A Shine Concrete Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate The Trustee For Bopage Family Trust T/As Shine Concrete Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Agreement covers the Applicant, the Construction, Forestry, Mining and Energy Union (CFMMEU), and the employees identified in Clause 4 of the Agreement. The Agreement passed its nominal expiry date on 31 March 2015.

[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] On 18 March 2016 my Chambers contacted Ms Nishama Amarakoon of the Applicant to advise her that the CFMMEU had not been referred to in the application. Additionally, my Chambers sought further information from the Applicant by way of statutory declaration in support of the application.

[5] On 6 September 2016 and 20 March 2017 my Chambers contacted Ms Amarakoon of the Applicant again and asked whether the Applicant intended to pursue the application.

[6] On 20 March 2017 Ms Amarakoon of the Applicant advised my Chambers that the Applicant intended to pursue the application. Ms Amarakoon was advised that she needed to refile a Form F23C and serve the CFMMEU.

[7] On 9 June 2017 the Applicant provided an updated Form F24B and filed a Form F24C. Ms Amarakoon of the Applicant was advised the Application needed to satisfy the public interest considerations in order for the application to be considered.

[8] On 20 November 2017, 27 April 2018, 30 May 2018 and 28 November 2018 my Chambers inquired again as to whether the Applicant intended to pursue the application. My Associate was advised on 28 November 2018 the information would be provided as soon as possible.

[9] On 18 January 2019 and 27 February 2019 my Chambers contacted Ms Amarakoon of the Applicant again and asked whether the Applicant wished to pursue the application. I propose therefore to deal with the application on the basis of the material filed.

[10] Nothing has been submitted by the Applicant to enable me to conclude that termination of the Agreement is not contrary to the public interest or from which I can address the other statutory considerations. The application fails.

[11] It is therefore appropriate to dismiss the application.

[12] An order giving effect to this decision is separately issued in PR706874.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE888956  PR707383>