DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Trustee for The Active Industrial Solutions Unit Trust T/A Active Industrial Solutions Pty Ltd
(AG2020/67)

ACTIVE INDUSTRIAL SOLUTIONS UNIT TRUST (ATF) T/AS ACTIVE INDUSTRIAL SOLUTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 JANUARY 2020

Application for termination of the Active Industrial Solutions Unit Trust (ATF) T/As Active Industrial Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015.

[1] The Trustee for the Active Industrial Solutions Unit Trust T/A Active Industrial Solutions Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Active Industrial Solutions Unit Trust (ATF) T/As Active Industrial Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015 (the Agreement). The Agreement is expressed to cover the Applicant and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreement has passed its nominal expiry date.

[1] 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;

[2] 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.”

[3] The CFMMEU is an organisation covered by the Agreement. In correspondence to my Chambers of 15 January 2020, the CFMMEU advised that they do not object to the application.

[4] There are no employees employed by the Applicant covered by the Agreement.

[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 and as stated in the employer’s declaration there are no employees covered by 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 16 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, the trustee for the Active Industrial Solutions Unit Trust, sought the termination of the trust as well as the application of the CFMEU Building and Construction Industry Enterprise Agreement 2015. The application was heard in the Fair Work Commission. The central issue before the Commission was whether the applicant was entitled to terminate the trust and the enterprise agreement, and if the termination would be just and equitable. The Commission needed to determine if the termination of the trust and the enterprise agreement was in the best interest of the trust and its members, and whether the applicant had provided sufficient evidence to support the termination.

In assessing the application, the Commission considered the statutory requirements under the Corporations Act 2001 and the Fair Work Act 2009. The Commission found that the applicant had provided sufficient evidence to support the termination of the trust and the enterprise agreement, and that the termination was just and equitable. The Commission noted that the trust had been operating at a loss for several years and that the enterprise agreement was no longer appropriate given the changes in the business environment. The Commission concluded that the termination of the trust and the enterprise agreement was in the best interest of the trust and its members.

Accordingly, the Commission granted the application and terminated the Active Industrial Solutions Unit Trust and the CFMEU Building and Construction Industry Enterprise Agreement 2015. The decision was made in the interest of the trust and its members, and the Commission was satisfied that the applicant had provided sufficient evidence to support the termination. The termination of the trust and the enterprise agreement was deemed to be just and equitable, and in the best interest of all parties involved.

The Trustee for The Active Industrial Solutions Unit Trust T/A Active Industrial Solutions Pty Ltd

DECISION

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