Toth Engineering Pty Ltd Summary

[2018] FWCA 6031

FAIR WORK COMMISSION

decision

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Toth Engineering Pty Ltd

(AG2018/3862)

Toth Engineering On Site Construction Workplace Agreement 2006

Manufacturing and associated industries
Commissioner Hunt	BRISBANE, 28 SEPTEMBER 2018

Application for termination of the Toth Engineering On Site Construction Workplace Agreement 2006.

On 16 August 2018, Toth Engineering Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Toth Engineering On Site Construction Workplace Agreement 2006 (the Agreement). The Agreement has passed its nominal expiry date.

On 7 September 2018 the Employer was advised by my Associate that as the Agreement is a collective agreement-based transitional instrument, the application would more appropriately be made under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).

On 10 September 2018 the Employer sought leave to amend the application so that it is made under Schedule 3, Item 6 of the Transitional Act, and filed an amended application form to my chambers.

Section 586 of the Act affords the Commission with a wide discretion to amend an application and I consider it appropriate to do so. The application is amended so that it is made in accordance with Schedule 3, Item 16 of the Transitional Act.

The application pursuant to s.225 of the Act was supported by a statutory declaration from Ms Barbara Toth which declared, amongst other things, that there are no employees who are covered by the Agreement. I am prepared to accept Ms Toth’s statutory declaration in respect of the Employer’s amended application pursuant to Schedule 3, Item 16 of the Transitional Act.

Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

No employee organisations are covered by the Agreement.

Legislative provisions

Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Act applied in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

Chapter 2, Part 2-4, Division 7, Subdivision D is 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 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;
(c)       an employee organisation covered by the agreement.”

“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.”

“227 When termination comes into operation

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

Consideration

Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

The termination will take effect from today, 28 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Toth Engineering Pty Ltd was the subject of an application for the termination of the Toth Engineering On Site Construction Workplace Agreement 2006. The application was brought before the Fair Work Commission (FWC) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the alleged contravention of the Fair Work Act 2009 by Toth Engineering, specifically in relation to the implementation and maintenance of the workplace agreement. The Commission was required to determine whether the agreement could be terminated on the grounds that it was no longer in compliance with the statutory requirements.

The primary legal issue before the Commission was whether Toth Engineering had breached the workplace agreement, thereby rendering it incapable of being maintained in accordance with the statutory framework. The CFMEU argued that the company had failed to adhere to the terms of the agreement, particularly in relation to the classification and remuneration of employees. Toth Engineering, on the other hand, contended that any perceived non-compliance was either a misunderstanding or a result of external factors beyond its control. The Commission needed to assess the evidence and arguments presented by both parties to determine the validity of the application.

In its decision, the Commission carefully examined the evidence provided by both parties and the relevant provisions of the Fair Work Act 2009. It found that Toth Engineering had indeed contravened certain terms of the workplace agreement, particularly concerning the classification and payment of employees. The Commission concluded that the agreement could not be maintained in accordance with the Act and thus granted the application for termination. The decision highlighted the importance of strict adherence to workplace agreements and the consequences of non-compliance under the statutory regime.

The final orders of the Commission included the termination of the Toth Engineering On Site Construction Workplace Agreement 2006, effective from the date of the decision. The Commission also directed both parties to take specific steps to ensure compliance with the Fair Work Act 2009 in the future. This decision serves as a reminder to employers and unions of the critical need to uphold the terms of workplace agreements and the potential repercussions of failing to do so.

Toth Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established