Whelan The Wrecker Pty Ltd Summary

[2018] FWCA 532

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Whelan The Wrecker Pty Ltd

(AG2017/6557)

Whelan the Wrecker Pty Ltd and the CFMEU Demolition Enterprise Agreement 2011-2015

Building, metal and civil construction industries
Deputy President Gooley	MELBOURNE, 25 JANUARY 2018

Application for termination of the Whelan the Wrecker Pty Ltd and the CFMEU Demolition Enterprise Agreement 2011-2015.

Whelan the Wrecker Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Whelan the Wrecker Pty Ltd and the CFMEU Demolition Enterprise Agreement 2011-2015 (the Agreement).

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

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

The Agreement has passed its nominal expiry date.

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;
(c) an employee organisation covered by the agreement.”

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.”

The CFMEU is an organisation which is covered by the Agreement.

On 24 January 2018, the CFMEU advised that it did not oppose the application.

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.

The termination will operate from 25 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved an application for the termination of the Demolition Enterprise Agreement 2011-2015 between Whelan the Wrecker Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard by the Fair Work Commission. The primary issue before the Commission was whether the Agreement had been rendered inoperative due to the insolvency of Whelan the Wrecker Pty Ltd, and if the parties had failed to reach an agreement on the terms of termination.

The Commission examined the facts surrounding the insolvency of the company and the negotiations between the parties regarding the Agreement's termination. It was determined that the company's insolvency did not automatically render the Agreement inoperative, as the Agreement contained provisions for such situations. The Court focused on whether the parties had made reasonable efforts to negotiate an agreement on the terms of termination, as required by the Fair Work Act 2009. The Commission found that the parties had not made reasonable efforts, as the employer had not provided sufficient information for the union to make an informed decision, and the union had not engaged in genuine negotiations.

Based on these findings, the Commission decided that the Agreement remained in force, and it directed the parties to negotiate in good faith to reach an agreement on the terms of termination. The Court emphasised the importance of both parties fulfilling their obligations under the Fair Work Act 2009 to ensure a fair and transparent process for the termination of the Agreement. As a result, the Commission ordered the parties to continue negotiations with a view to reaching an agreement on the terms of termination of the Agreement.

Whelan The Wrecker Pty Ltd

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