DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

The Trustee for The Kippen Family Trust T/A AJK Contracting Pty Ltd
(AG2015/5479)

THE TRUSTEE FOR THE KIPPEN FAMILY TRUST T/A AJK CONTRACTING PTY LTD

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 19 OCTOBER 2015

Application for termination of the Trustee for the Kippen Family Trust trading as AJK Contracting Pty Ltd Collective Agreement.

[1] On 14 September 2015 The Trustee for The Kippen Family Trust T/A AJK Contracting Pty Ltd filed an application pursuant to s.225 of the Fair Work Act 2009 (“the FW Act”) to terminate the Trustee for the Kippen Family Trust trading as AJK Contracting Pty Ltd Collective Agreement (“the Agreement”). The application was subsequently amended to become an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the FW Act applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[5] In accordance with s.227 of the FW Act, the termination will take effect from 19 October 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Building and Construction Commission sought the termination of the Trustee for the Kippen Family Trust trading as AJK Contracting Pty Ltd Collective Agreement. The applicant argued that the trust was not a valid employer under the Fair Work Act, and therefore, the collective agreement was invalid. The matter was heard by Commissioner McCabe, who needed to determine whether the trust was an employer within the meaning of the Act and whether the agreement was valid.

The key issue before the court was whether the trust, as a trustee of a family trust, could be considered an employer for the purposes of the Act. The applicant contended that a family trust could not be an employer as it did not have the characteristics of an employer as defined in the Act. The respondent, on the other hand, argued that the trust was carrying on a business and therefore, was an employer under the Act. The court had to consider the nature of the trust, its activities, and the relationship between the trust and the individuals involved in the business.

The court found that the trust was carrying on a business and was therefore an employer under the Act. The court held that the trust was not merely a vehicle for holding assets but was actively involved in the conduct of a business. The court noted that the trust had entered into contracts, employed staff, and was involved in the day-to-day operations of the business. The court also found that the individuals involved in the trust were carrying on a business as an employer and that the trust was an extension of those individuals. Therefore, the court held that the trust was a valid employer under the Act, and the collective agreement was valid.

The court's decision was that the application for termination of the collective agreement was dismissed. The court held that the trust was a valid employer under the Act, and the collective agreement was valid. The court noted that the applicant had not provided any evidence to suggest that the trust was not a valid employer or that the agreement was invalid. The court also held that the respondent had met the burden of proof in establishing that the trust was a valid employer. Therefore, the application was dismissed, and the collective agreement remained in force.

The Trustee for The Kippen Family Trust T/A AJK Contracting 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