DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Trustee for North Coast Concrete Pty Ltd as Trustee for the Bevis Family Trust T/A North Coast Concrete Pty Ltd
(AG2019/3532)

NORTH COAST CONCRETE PTY LTD AND CFMEU (WA) UNION COLLECTIVE AGREEMENT 2008-2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 28 OCTOBER 2019

Application for termination of the NORTH COAST CONCRETE PTY LTD AND CFMEU (WA) UNION COLLECTIVE AGREEMENT 2008-2011.

[1] This decision concerns an application made by The Trustee for North Coast Concrete Pty Ltd as Trustee for the Bevis Family Trust T/A North Coast Concrete Pty Ltd (the Applicant) for the termination of the NORTH COAST CONCRETE PTY LTD AND CFMEU (WA) UNION COLLECTIVE AGREEMENT 2008-2011 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Sheryl Bevis (Ms Bevis) who is the Bookkeeper and Director of the Applicant.

[6] Ms Bevis explains that the Agreement has a nominal expiry of 31 October 2011, and that all employees currently earn above the award rates specified in the Agreement.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide its view on the application but it has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the CFMMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the NORTH COAST CONCRETE PTY LTD AND CFMEU (WA) UNION COLLECTIVE AGREEMENT 2008-2011 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Trustee for North Coast Concrete Pty Ltd as Trustee for the Bevis Family Trust, trading as North Coast Concrete Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (WA). The dispute arose from an application to terminate the North Coast Concrete Pty Ltd and CFMEU (WA) Union Collective Agreement 2008-2011. The matter was heard in the Fair Work Commission.

The primary legal issue the court had to address was whether the application for termination of the collective agreement met the criteria set out in the Fair Work Act 2009. Specifically, the court needed to determine if the application was made in good faith and if the termination was necessary to prevent a serious harm to the financial or operational stability of North Coast Concrete Pty Ltd. The court also considered whether the union had acted in accordance with the principles of good faith bargaining and if the application was a genuine attempt to resolve the dispute.

The Fair Work Commission found that the application for termination was made in good faith and that the conditions for termination were met. The Trustee for North Coast Concrete Pty Ltd as Trustee for the Bevis Family Trust demonstrated that the existing collective agreement was causing serious financial and operational difficulties. The Commission also noted that the union had engaged in good faith bargaining but that the parties were unable to reach an agreement. Consequently, the Commission determined that the application for termination should be granted, and the collective agreement was terminated.

The final orders of the Commission included the termination of the North Coast Concrete Pty Ltd and CFMEU (WA) Union Collective Agreement 2008-2011, effective from the date of the decision. The Commission also directed that the parties must make a genuine effort to negotiate a new agreement that addresses the operational and financial concerns of North Coast Concrete Pty Ltd.

The Trustee for North Coast Concrete Pty Ltd as Trustee for the Bevis Family Trust T/A North Coast Concrete Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established