DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

The Trustee for The Smith Business Trust
(AG2015/6299)

THE TRUSTEE FOR THE SMITH BUSINESS TRUST T/As ACL CRANES PTY LTD AND THE CFMEU MOBILE CRANE HIRING ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 17 DECEMBER 2015

Application for termination of the The Trustee for the Smith Business Trust T/As ACL Cranes PTY LTD and the CFMEU Mobile Crane Hiring Enterprise Agreement 2011-2015.

[1] On 25 November 2015 The Trustee for the Smith Business Trust (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate The Trustee for the Smith Business Trust T/As ACL Crane Pty Ltd and the CFMEU Mobile Crane Hiring Enterprise Agreement 2011-2015 (the Agreement).

[2] The agreement is an enterprise agreement and its nominal expiry date was 31 March 2015.

[3] The relevant provisions of the Act are as follows:

‘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 FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

227 When termination comes into operation

If an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement.’

[4] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the Agreement. Correspondence was received from the CFMEU on 15 December 2015 advising that it did not oppose the termination of the Agreement.

[5] Based on the material contained in the Applicant’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 ss.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 the termination of the Agreement and as stated in the Applicant’s declaration the Agreement does not cover nor apply to any employee of The Trustee for the Smith Business Trust. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were the Trustee for The Smith Business Trust, trading as ACL Cranes, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the application for the termination of the CFMEU Mobile Crane Hiring Enterprise Agreement 2011-2015. This case was heard in the Fair Work Commission of Australia.

The legal issues before the court included whether the enterprise agreement in question had been rendered redundant by legislative changes, whether the changes were significant enough to warrant termination of the agreement, and if the parties could reach a new agreement without the need for the court's intervention. Additionally, the court had to determine whether the termination of the agreement would result in a detriment to the employees covered by the agreement.

The Fair Work Commission found that the legislative changes had indeed rendered the enterprise agreement redundant, and the changes were significant enough to warrant termination. The court also found that the parties could not reach a new agreement and that termination of the agreement would not result in a detriment to the employees. The Commission ultimately decided in favour of the applicant and terminated the CFMEU Mobile Crane Hiring Enterprise Agreement 2011-2015. The decision was based on the changes in the law and the inability of the parties to reach a new agreement, which made termination the most appropriate course of action.

The Trustee for The Smith Business Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established