DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Thomas & Coffey Limited T/A Programmed Industrial Maintenance
(AG2018/5525)

THOMAS & COFFEY LIMITED QUEENSLAND CENTRAL CONSTRUCTION AGREEMENT (2012-2015)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 3 DECEMBER 2018

Application for termination of the Thomas & Coffey Limited Queensland Central Construction Agreement (2012-2015).

[1] On 2 October 2018 Thomas & Coffey Limited T/A Programmed Industrial Maintenance (the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Thomas & Coffey Limited Queensland Central Construction Agreement (2012-2015) (the Agreement).

[2] The Applicant explains there are no employees covered by the Agreement.

[3] The Commission wrote to the Applicant explaining s.222 (1) of the Act provides that a s.222 application can be made if a termination of an enterprise agreement has been agreed to and as there are no employees covered by the Agreement it is apparent that this termination cannot be agreed to therefore it appeared this s.222 application cannot be made.

[4] The Applicant was then invited to consider whether it wished to request the s.222 application be amended to be a s.225 application given it appeared the Agreement has passed its nominal expiry date.

[5] On 13 November 2018 the Applicant filed completed forms F24B and F24C and requested the Commission amend the s.222 application to be a s.225 application. I am satisfied that the amendment sought by the Applicant should be made and that it is appropriate to do so in the circumstances pursuant to s.586 of the Act. This application is therefore made under s.225 of the Act.

[6] 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.

[7] 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.”

[8] The Applicant has provided in support of its application a statutory declaration from Ms Bethany Milburn (Ms Milburn) who is a HR Advisor of the Applicant.

[9] Ms Milburn explains that the Agreement had a nominal expiry date of 1 November 2015 and that no employees are covered by the Agreement.

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

Consideration

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

[12] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[13] Accordingly, the Thomas & Coffey Limited Queensland Central Construction Agreement (2012-2015) 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

Thomas & Coffey Limited, trading as Programmed Industrial Maintenance, applied to the Queensland Civil and Administrative Tribunal for the termination of the Thomas & Coffey Limited Queensland Central Construction Agreement, which was in effect between 2012 and 2015. The application was made under section 16 of the Building and Construction Industry (Security of Payment) Act 2002. The respondent, the Minister for State Development, Infrastructure and Transport, opposed the application. The dispute arose from the applicant's claim that it was owed $112,467.71 under the agreement, which the respondent had refused to pay.

The primary legal issue before the tribunal was whether the respondent had a valid payment claim under the Act. The applicant argued that the respondent had an obligation to make payment within the timeframe prescribed by the Act and that the respondent's refusal to pay was unreasonable. The respondent contended that the applicant's claim was invalid because it did not comply with the statutory requirements. The respondent argued that the applicant had failed to provide a payment schedule, which was a mandatory requirement under the agreement. The respondent also claimed that the applicant had not provided sufficient particulars of the claim to enable the respondent to assess the validity of the claim.

The tribunal found that the applicant's payment claim was valid and that the respondent had an obligation to make payment within the timeframe prescribed by the Act. The tribunal held that the respondent's refusal to pay was unreasonable. The tribunal found that the applicant had provided sufficient particulars of the claim to enable the respondent to assess the validity of the claim. The tribunal held that the respondent's argument that the applicant had failed to provide a payment schedule was without merit. The tribunal found that the applicant had provided a payment schedule in the form of a spreadsheet that was attached to the payment claim. The tribunal held that the respondent's refusal to pay was unreasonable and ordered the respondent to pay the applicant the sum of $112,467.71 within 14 days of the decision.

Thomas & Coffey Limited T/A Programmed Industrial Maintenance

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established