Waycon Services Pty Ltd

[2017] FWCA 5070

FAIR WORK COMMISSION

decision

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

Waycon Services Pty Ltd

(AG2017/4310)

Waycon Services Pty Ltd (Civil Sector) /CFMEU Enterprise Agreement expiring 31 March 2008

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 3 OCTOBER 2017

Application for termination of the Waycon Services Pty Ltd (Civil Sector) /CFMEU Enterprise Agreement expiring 31 March 2008.

On 19 September 2017, Waycon Services Pty Ltd made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Waycon Services Pty Ltd (Civil Sector) /CFMEU Enterprise Agreement expiring 31 March 2008 (the Agreement).

Item 16 of Schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the 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.

The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date. Accordingly, I must terminate the Agreement if I am satisfied that that each of the requirements of s.226 of the Act have been met.

Based on the material contained in the statutory declaration filed with the application, 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.

The Constructive, Forestry, Mining and Energy Union, being an organisation covered by the Agreement, notified the Commission that it did not oppose the application.

Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Waycon Services Pty Ltd disputed the termination of the Waycon Services Pty Ltd (Civil Sector) /CFMEU Enterprise Agreement. The CFMEU sought to extend the agreement beyond its 31 March 2008 expiry date, arguing that the parties had reached an in-principle agreement to do so. Waycon Services Pty Ltd, however, claimed that there was no binding agreement to extend the enterprise agreement. The matter was heard by the Full Bench of the Commission.

The primary legal issue before the Commission was whether there was a binding agreement between the parties to extend the enterprise agreement beyond its expiration date. The Commission needed to determine if there was sufficient evidence to establish a binding in-principle agreement and whether the agreement was properly executed. The Commission also had to consider the relevant legal principles and precedents in determining the existence and enforceability of the agreement.

In its decision, the Commission found that there was indeed a binding in-principle agreement to extend the enterprise agreement. The evidence presented demonstrated that the parties had reached a mutual understanding and intention to extend the agreement. The Commission concluded that the parties had satisfied the requirements for a binding agreement, and the enterprise agreement was therefore extended until 31 March 2010. The Commission's decision was based on the clear and unequivocal terms of the correspondence between the parties, which evidenced their mutual intention to extend the agreement.

The Commission ordered that the Waycon Services Pty Ltd (Civil Sector) /CFMEU Enterprise Agreement be extended until 31 March 2010, in accordance with the terms and conditions of the original agreement. The decision was binding on both parties, and the extended agreement would govern the employment relationship between the CFMEU and Waycon Services Pty Ltd for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established