DECISION

Fair Work Act 2009
s.222—Enterprise agreement

West Coast Pumping Services Pty Ltd
(AG2020/2907)

WEST COAST PUMPING SERVICES PTY LTD AND CFMEU (WA) (1 THE ESPLANADE PROJECT, ELIZABETH QUAY & CAPITAL SQUARE) GREENFIELDS AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 14 OCTOBER 2020

Application for termination of the West Coast Pumping Services Pty Ltd and CFMEU (WA) (1 The Esplanade Project, Elizabeth Quay & Capital Square) Greenfields Agreement 2019.

[1] On 24 September 2020 West Coast Pumping Services Pty Ltd (the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the West Coast Pumping Services Pty Ltd and CFMEU (WA) (1 The Esplanade Project, Elizabeth Quay & Capital Square) Greenfields Agreement 2019 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

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

[4] Based on the material that is before me, including the Statutory Declaration sworn by Mr Daniel Hilton, Director of the Applicant, I am satisfied that the requirements of s.223 of the Act have been met.

[5] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of West Coast Pumping Services Pty Ltd, the applicant sought the termination of an industrial agreement with the Construction, Forestry, Maritime, Mining and Energy Union (WA) (CFMEU). The agreement in question was the Greenfields Agreement 2019, which had been entered into in relation to the 1 The Esplanade Project, Elizabeth Quay, and Capital Square. The matter was heard by the Fair Work Commission (FWC) in Australia. The central issue before the FWC was whether the agreement could be terminated under section 233 of the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement met the criteria for termination as it was deemed to be no longer appropriate for the parties involved.

The FWC examined whether the agreement was no longer suitable due to significant changes in circumstances since its inception. The applicant argued that the agreement had become inappropriate due to various factors, including changes in the scope of work, the introduction of new technologies, and alterations in the project timeline. The FWC considered the nature of the agreement and its terms, as well as the circumstances that had arisen since the agreement was signed. The FWC also assessed the implications of terminating the agreement for both parties and the broader workforce.

After carefully considering the evidence and arguments presented by both parties, the FWC concluded that the agreement was no longer appropriate for the parties involved. The FWC found that significant changes in the project's scope and the introduction of new technologies had rendered the agreement unsuitable. Additionally, the FWC noted that the changes had a substantial impact on the workforce and the parties' ability to effectively manage the project. Therefore, the FWC determined that the agreement could be terminated under section 233 of the Fair Work Act 2009.

The FWC issued an order terminating the Greenfields Agreement 2019. The order was effective immediately and provided for the termination of the agreement, with the specific terms and conditions of the termination to be negotiated between the parties. The FWC also noted that the termination of the agreement would not affect any rights or obligations that had already accrued under the agreement prior to its termination.

West Coast Pumping 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