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
(AG2018/339)

WAYCON SERVICES NEWCASTLE PTY LTD (CIVIL SECTOR LABOUR HIRE) /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 (Civil Sector Labour Hire) / 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 (Civil Sector Labour Hire) / 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

In the Fair Work Commission, Waycon Services Newcastle Pty Ltd, the applicant, sought the termination of the Waycon Services Newcastle Pty Ltd (Civil Sector Labour Hire) / CFMEU Enterprise Agreement Expiring 31 March 2008. The applicant argued that the agreement should be terminated as it was no longer appropriate for the current economic and operational environment. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the respondent, opposed the application, asserting that the agreement was still relevant and beneficial to the employees.

The central legal issue before the Commission was whether the terms of the existing enterprise agreement had become unsuitable for the current economic and operational environment, warranting its termination. The Commission considered the economic context, changes in the labour market, and the operational needs of the applicant company. The Commission also evaluated the impact of the agreement on employees, the fairness of the terms, and whether the agreement was still beneficial to the employees.

The Commission determined that the economic and operational conditions had indeed changed since the agreement was made. The Commission found that the terms of the agreement were no longer appropriate for the current environment, particularly in relation to the flexibility and adaptability required by the applicant. The Commission concluded that the agreement should be terminated as it was not in the best interests of the employees or the company. The Commission emphasised the importance of enterprise agreements being responsive to the changing economic and operational realities.

The Commission ordered that the Waycon Services Newcastle Pty Ltd (Civil Sector Labour Hire) / CFMEU Enterprise Agreement Expiring 31 March 2008 be terminated, effective from the date of the decision. The Commission directed the parties to negotiate in good faith to establish a new enterprise agreement that reflects the current economic and operational conditions. The Commission also provided guidelines for the negotiation process to ensure it was fair and efficient.

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