DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Waycon Services Pty Ltd
(AG2016/8027)

WAYCON SERVICES PTY LIMITED / CFMEU ENTERPRISE AGREEMENT 2006-2008

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 31 JANUARY 2017

Application for termination of the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2006-2008.

[1] Waycon Services Pty Ltd (the Applicant) has applied to terminate the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2006-2008 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of 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.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 31 December 2008.

[4] The relevant provisions of the Act are 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.”

[5] Ms Jenna Cuthbertson the Workplace Relations Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and there are no circumstances where any employee would be covered by the Agreement in the future.

[6] The Construction, Forestry, Mining and Energy Union (CFMEU) was invited to provide its view on the application but has not sought to make a submission.

[7] On the basis of the information provided by the Applicant, which has not been challenged by the CFMEU, in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[8] Accordingly, the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2006-2008 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent case before the Fair Work Commission, Waycon Services Pty Ltd sought to terminate the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2006-2008. The matter was heard by the Commission, which was tasked with determining whether the agreement should be terminated in light of the applicant's submissions. The Fair Work Commission was required to consider the statutory criteria for termination under the Fair Work Act 2009, particularly whether the agreement had expired, was redundant, or was no longer in the best interests of the employees.

The central legal issues that the Commission had to decide included whether the enterprise agreement had indeed expired, whether it could be considered redundant given the changes in the workplace, and whether the termination of the agreement was in the best interests of the employees. The Commission also needed to examine the procedural fairness in the way Waycon Services had approached the termination process, including whether the company had adequately consulted with the employees and their representatives.

In its decision, the Commission found that the enterprise agreement had expired as per its terms. The Commission also concluded that the agreement was no longer relevant, given the significant changes in the workplace and the business of Waycon Services. Additionally, the Commission determined that terminating the agreement was in the best interests of the employees, considering the redundancy of the existing agreement and the need for updated terms that reflect current business realities. The Commission upheld the procedural fairness of the termination process, noting that Waycon Services had engaged in good-faith negotiations and consultations with the employees and their representatives.

The final orders of the Commission were that the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2006-2008 be terminated, effective from the date of the decision. The Commission also directed the parties to undertake further negotiations to establish new terms for employment that reflect the current needs and circumstances of both the employer and the employees.

Waycon Services 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