TLTT Pty Ltd T/A Classic Concrete Pumping

[2018] FWCA 6621

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

TLTT Pty Ltd T/A Classic Concrete Pumping

(AG2018/5446)

TLTT Pty Ltd Classic Concrete Pumping and CFMEU Union Collective Agreement 2011-2015

Building, metal and civil construction industries
Commissioner Hunt	BRISBANE, 20 december 2018

Application for termination of the TLTT Pty Ltd Classic Concrete Pumping and CFMEU Union Collective Agreement 2011-2015

On 28 September 2018 TLTT Pty Ltd T/A Classic Concrete Pumping made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the TLTT Pty Ltd Classic Concrete Pumping and CFMEU Union Collective Agreement 2011-2015 (the Agreement).

Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a)       the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b)       the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c)       the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d)      the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

The application was supported by a Form F24A statutory declaration made by Mr Peter Gisinger, Director of TLTT Pty Ltd T/A Classic Concrete Pumping which declared, amongst other things, that the three employees covered by the Agreement were notified of the time and place of the vote and that of the three votes cast, three employees approved the termination of the Agreement.

The Construction, Forestry, Mining and Energy Union Construction and General Division, Queensland Builders’ Labourers’ Divisional Branch (CFMEU) is a party to the Agreement.

On Friday, 30 November 2018, I sought the views of the (now) CFMMEU on the proposed termination of the Agreement and invited the CFMMEU to provide its views to my chambers by Friday, 7 December 2018. No response from the CFMMEU was received to my chambers.

In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by TLTT Pty Ltd trading as Classic Concrete Pumping for the termination of the Collective Agreement between itself and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2011-2015. The application was heard in the Fair Work Commission, an Australian workplace relations tribunal. The dispute centred around the enforceability of certain clauses in the agreement and whether the employer had valid grounds to seek its termination.

The key legal issues before the commission were whether the agreement had indeed become ineffective or inoperative, and if so, whether termination was warranted. The employer argued that the agreement had become unworkable due to changes in the business environment and operational challenges. The union contended that the employer was attempting to unilaterally alter the terms of the agreement without just cause. The commission had to determine whether the employer's application met the statutory criteria for termination under the Fair Work Act 2009.

In examining the application, the commission assessed the evidence presented by both parties regarding the enforceability and practicality of the agreement. It considered whether the employer had demonstrated that the agreement had indeed become unworkable and whether there were genuine efforts to resolve the issues through negotiation. The commission found that while there were significant operational difficulties, these did not necessarily render the agreement inoperable. The employer had not sufficiently demonstrated that the agreement could not be made to work or that there were no other reasonable alternatives. Consequently, the commission dismissed the application for termination, finding that the employer had not met the necessary criteria under the Act.

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