[2018] FWCA 668

The attached document replaces the document previously issued with the above code on 1 February 2018.

The document has been amended to correct paragraph numbering.

Matthew Jordon

Acting Associate to Deputy President Gooley

Dated: 2 February 2018

[2018] FWCA 668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Waycon Services Pty Ltd
(AG2018/26)

WAYCON SERVICES (NSW) PTY LTD / CFMEU REGIONAL GREENFIELDS AGREEMENT 2014 - 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 1 FEBRUARY 2018

Application for termination of the Waycon Services (NSW) Pty Ltd / CFMEU Regional Greenfields Agreement 2014 - 2017.

[1] Waycon Services Pty Limited (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Waycon Services (NSW) Pty Ltd / CFMEU Regional Greenfields Agreement 2014 – 2017 (the Agreement).

[2] The Agreement is expressed to cover the Applicant and the Construction, Forestry, Mining and Energy Union (the CFMEU).

[3] The Applicant advises that there are currently no employees covered by the Agreement.

[4] The Agreement has passed its nominal expiry date.

[5] Section 225 of the Act provides:

“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;

[6] Section 226 of the Act provides:

“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.”

[7] The CFMEU is an organisation which is covered by the Agreement.

[8] On 5 January 2018 and 24 January 2018, Chambers wrote to the CFMEU asking it to advise Chambers of its position regarding the application by 29 January 2018. The CFMEU did not respond.

[9] The application was listed for eHearing at 2:00 pm on 2 February 2018 and the public court list stated:

“Persons wishing to be heard in this matter should contact the chambers of Deputy President Gooley at least one hour before the time listed and the matter will be listed for an attendance hearing.”

[10] Chambers was not contacted by any persons seeking to be heard in this matter.

[11] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[12] The termination will operate from 5.00 pm on 1 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Waycon Services Pty Ltd, an employer, brought an application to terminate the Waycon Services (NSW) Pty Ltd / CFMEU Regional Greenfields Agreement 2014 - 2017. The union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Regional Greenfields Branch, opposed the application. The dispute was heard by the Fair Work Commission, which has the authority to make decisions on applications related to enterprise agreements.

The central legal issue before the Commission was whether the application to terminate the agreement met the statutory criteria outlined in the Fair Work Act 2009. Specifically, the Commission had to determine if there had been a significant change in circumstances since the agreement was made, as required by section 236 of the Act. The union argued that the application did not meet the threshold for a significant change in circumstances, while the employer contended that the substantial increase in labour costs due to a wage increase was a significant change warranting termination.

The Commission examined the evidence presented by both parties and considered the definition of a significant change in circumstances. It found that while there had been an increase in labour costs, this alone did not constitute a significant change. The Commission also noted that the agreement contained a mechanism for resolving disputes over wage increases, which had not been exhausted. Therefore, the application did not meet the statutory criteria for termination.

The Fair Work Commission dismissed the application for termination, concluding that the employer had not demonstrated a significant change in circumstances. The Commission ordered that the agreement remain in force, and both parties were directed to continue to act in accordance with its terms until it expires or is otherwise terminated.

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