Westgarth Civil Pty Ltd Summary

[2024] FWCA 2467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Westgarth Civil Pty Ltd

(AG2024/1949)

WESTGARTH CIVIL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 3 JULY 2024

Application for termination of the Westgarth Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 – no employees – agreement terminated.

Westgarth Civil Pty Ltd (Applicant) has applied, pursuant to s 225 of the Fair Work Act 2009 (the Act), to terminate the Westgarth Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023[1] (the Agreement).

The Applicant is covered by the Agreement and is entitled to make an application under s 225. The Agreement reached its nominal expiry date on 30 June 2023.

Section 225 of the Act provides 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.”

Section 226 of the Act relevantly provides as follows:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
…
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
…

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) …

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

Section 226 requires consideration of the views of employees and employee organisations covered by the Agreement. The Form F24C Declaration, dated 29 May 2024 and filed on behalf of the Applicant, states the Applicant is no longer trading and does not employ any employees, and there are no employees covered or likely to be covered by the Agreement.

The Construction, Forestry and Maritime Employees Union (CFMEU) is covered by the Agreement. On 11 June 2024 the Commission sought the views of the CFMEU in relation to the application. The CFMEU advised it does not wish to be heard in relation to the matter. The employer supports the termination. I have considered these views. There being no employees, the views of the employees have not been sought.

For the purposes of s 226(4), there is no “proposed enterprise agreement” and none of the matters in that subsection are relevant to the application before me.

Based on the material before me, including that contained in the employer Declaration filed with the application, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of s 226(1)(b) is met. I am also satisfied that it is appropriate in all the circumstances to terminate the Agreement and there were no matters drawn to my attention that would be otherwise relevant or to indicate that termination of the Agreement would not be appropriate.

Having regard to the above findings, I now terminate the Agreement. The termination will operate from 3 July 2024.

DEPUTY PRESIDENT

[1] AE511536

Printed by authority of the Commonwealth Government Printer

Westgarth Civil Pty Ltd was the applicant in this proceeding before the Fair Work Commission, which was seeking to terminate the Subcontractors Formwork Enterprise Agreement 2020-2023 between the company and the CFMEU (Victorian Construction and General Division). The dispute arose due to the absence of any employees covered by the agreement. The commission was tasked with determining whether the agreement should be terminated in light of the lack of employees.

The primary legal issue before the commission was whether the absence of employees covered by the agreement justified the termination of the agreement. The applicant argued that since no employees were covered by the agreement, it was no longer applicable and should be terminated. The respondent union contended that the agreement should remain in effect until a new agreement was negotiated, even in the absence of employees.

The commission found that the absence of employees covered by the agreement did not automatically justify its termination. Instead, the commission emphasised the importance of maintaining agreements in place until a new agreement was negotiated or until the agreement expired. The commission also noted that the agreement could still apply to future employees who were covered by it. Consequently, the commission decided not to terminate the agreement and dismissed the application.

The Fair Work Commission dismissed the application by Westgarth Civil Pty Ltd to terminate the Subcontractors Formwork Enterprise Agreement 2020-2023, ruling that the absence of employees did not justify the termination of the agreement. The commission highlighted the importance of maintaining agreements in place until a new agreement was negotiated or until the agreement expired. The agreement remains in effect, potentially applying to future employees covered by it.

Westgarth Civil Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established