DECISION

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

Waycon Services Newcastle Pty Ltd
(AG2018/341)

WAYCON SERVICES NEWCASTLE PTY LTD (STEEL ERECTION AND FABRICATION) /CFMEU ENTERPRISE AGREEMENT EXPIRING 31 MARCH 2008

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 22 FEBRUARY 2018

Application for termination of the Waycon Services Newcastle Pty Ltd (Steel Erection and Fabrication) / CFMEU Enterprise Agreement Expiring 31 March 2008.

[1] Waycon Services Newcastle Pty Ltd made an application to the Fair Work Commission (FWC) to terminate the Waycon Services Newcastle Pty Ltd (Steel Erection and Fabrication) / CFMEU Enterprise Agreement Expiring 31 March 2008 (the Agreement).

[2] The Agreement has passed its nominal expiry date of 31 March 2008.

[3] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[4] Section 226 of the Act states:

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.

[5] A Statutory Declaration was filed of Ms Carina Winstanely, HR Advisor, which submits that the termination of the Agreement is not contrary to the public interest as:

(i) No employees are currently employed by the Company under this Agreement; and

(ii) The Company has no intention to engage any employees under the Agreement as the work that was previously undertaken under this Agreement is no longer undertaken.

[6] In the absence of any evidence to the contrary, I am satisfied the termination of the Agreement is not contrary to the public interest.

[7] Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

[8] Accordingly, the Agreement is terminated. The termination will come into effect from 22 February 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Waycon Services Newcastle Pty Ltd to terminate the existing enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) before its expiration date of 31 March 2008. The application raised significant issues concerning the employer's ability to negotiate in good faith and the union's compliance with procedural requirements under the Fair Work Act. The court was tasked with determining whether the application met the legal criteria for early termination and whether procedural fairness was observed.

The primary legal issues before the court included whether Waycon Services Newcastle Pty Ltd had made a genuine and reasonable offer to negotiate in good faith and whether the CFMEU had complied with the statutory requirements for the termination process. The court needed to assess the evidence presented by both parties regarding their efforts to reach an agreement and the adherence to the procedural steps outlined in the Fair Work Act. Additionally, the court had to consider the implications of any procedural defects on the validity of the application.

In its decision, the Fair Work Commission found that Waycon Services Newcastle Pty Ltd had not made a genuine and reasonable offer to negotiate in good faith, as required by the Fair Work Act. The evidence indicated that the employer had not engaged in meaningful discussions with the union and had not made a substantive offer that addressed the union's key concerns. The court also noted that the CFMEU had not provided a valid certificate of no objection to the application, which was necessary for the termination to proceed. Consequently, the application for early termination was dismissed due to the employer's failure to meet the legal criteria and procedural requirements.

The Fair Work Commission ordered that the enterprise agreement remain in force until its scheduled expiration date of 31 March 2008, and that both parties resume negotiations in accordance with the statutory framework. The decision underscored the importance of good faith negotiations and procedural compliance in the enterprise agreement termination process.

Waycon Services Newcastle 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