The Trustee for Consolidated Graphics Trust T/A Consolidated Graphics

[2023] FWC 1967

[2023] FWC 1967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

The Trustee for Consolidated Graphics Trust T/A Consolidated Graphics

(AG2023/1732)

COMMISSIONER MIRABELLA MELBOURNE, 1 SEPTEMBER 2023

Application for termination of the Consolidated Graphics Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

1. On 5 June 2023, The Trustee for Consolidated Graphics Trust T/A Consolidated Graphics (the Applicant) applied to the Fair Work Commission (Commission) under s.225 of the Fair Work Act 2009 (the Act) for the termination of the Consolidated Graphics Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015[1] (the Agreement).

1. The Applicant operates a sign manufacture and design business.

1. The Form F24C declaration (Form F24C) lodged with the application indicated that the Applicant was applying to terminate the Agreement under s.226(1)(b) of the Act; that is, on the ground that there are not or are not likely to be any employees covered by the Agreement. However, in response to Question 5.3 of the Form F24C, the Applicant advised it engages two employees covered by the Agreement who are from a non-English speaking background and over the age of 45 years.

1. On 7 June 2023, I caused an email to be sent to the Applicant seeking clarification regarding the discrepancy between stating that the Agreement does not and is not likely to cover any employees and stating that the Applicant engages two employees covered by the Agreement. This email also requested that the Applicant serve the Form F24B application (Form F24B) and Form F24C on the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) as per Schedule 1 of the Fair Work Commission Rules 2013.

1. On 8 June 2023, my chambers spoke with Mr Darren Eyckens, General Manager of the Applicant, and Ms Fousiya Naskar, Accountant for the Applicant, who advised, amongst other things, that:

·   The Applicant does engage employees and asserted that these employees are not covered by the Agreement;

·   The Agreement is “voided” because it passed its nominal expiry date in 2015;

·   The Agreement cannot cover any of the Applicant’s current employees because none of these employees were employed in the period between the Agreement’s commencement date and its nominal expiry date;

·   The Agreement is “inactive” because the Applicant’s employees are paid the same as the relevant modern award; and

·   Mr Eyckens had never seen the Agreement as it was his predecessor in the business who had signed it.

1. On the same day and following the phone call, Ms Naskar sent chambers an email requesting to be provided with a copy of the Agreement and further advised that:

“ … there are no employees covered under this agreement since the nominal expiry date of this agreement was more than 8 years ago. The pay conditions of the employees have long since exceed the terms in this agreement.”

1. My chambers sent an email to Ms Naskar attaching a copy of the Agreement and requesting confirmation that the Form F24B and Form F24C had been served on the CFFMEU.

1. On 9 June 2023, Ms Naskar emailed amended copies of the Form F24B and Form F24C, copying in the CFMMEU to her email to chambers. The revised Form F24C reaffirmed that the Applicant was applying under s.226(1)(b) of the Act and in response to Question 5.3, the Applicant advised it does not engage any employees covered by the Agreement who are of a non-English speaking background or who are over 45 years of age.

1. In response to Question 4 regarding any other relevant matters, the Applicant had noted:

“The nominal expiry date of this agreement was more than 8 years ago and no staff from that time remain. The pay and conditions of current employees far exceed the terms of this agreement.”

1. On 14 June 2023, my chambers emailed the CFMMEU asking whether they are of the view that there are no employees covered by the Agreement.

1. In response, the CFMMEU on 19 June 2023 advised chambers it does not seek to oppose the application and does not seek to be heard regarding this matter. They also advised that they do not know whether there are any employees covered by the Agreement.

1. On 4 July 2023, I conducted a conference in the matter where discussions included an explanation of enterprise agreement coverage extending to employees beyond those employed at the time the Agreement was made.

1. On 17 August 2023, my chambers sent an email to the Applicant advising that I was of the preliminary view that the Agreement covers all employees engaged by the Applicant in the “occupations, callings or industries” specified in the National Building and Construction Industry Award 2000 (the Award), noting clause 4.1 of the Agreement regarding its scope. This email noted that the Award covers industries relating to the “ornamentation … of buildings or structures”,[2] which, without further evidence or submissions, would appear to cover the industry engaged in by the Applicant who operates a sign manufacture and design business.

1. This email noted that without further submissions or evidence regarding whether current employees are covered by the Agreement, or submissions with respect to the other grounds for termination in s.226(1) of the Act, I was not satisfied that the Agreement could be terminated. Further submissions and any evidence were sought by 4:00pm on 23 August 2023.

1. To date, no further submissions have been provided and the Applicant has not engaged further with the Commission.

Consideration

1. Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

1. I consider that as the Applicant has failed to prosecute its application, the application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the Act. An order giving effect to this decision will be issued shortly.

COMMISSIONER

[1] AE890485.

[2] National Building and Construction Industry Award 2000 (AP790741) clauses 4.13.1, 6.1.1.

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