s.225 - Enterprise agreement

SCHIAVELLO CONSTRUCTION (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

Application for termination of an enterprise agreement

[1] Schiavello Construction VIC Pty Ltd (applicant) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Schiavello Construction (VIC) Pty Ltd and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023 (Agreement). The Agreement is expressed to cover the applicant and its employees who are construction workers engaged in general building and construction as defined in the Building and Construction General On-Site Award 2010. The Agreement also covers the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement reached its nominal expiry date on 30 June 2023.

[2] Section 225 of the Act provides that, if an enterprise agreement has passed its nominal expiry date, any of the following may apply to the Commission for the termination of the agreement: one or more of the employers covered by the agreement; an employee covered by the agreement; or an employee organisation covered by the agreement.

[3] Section 226 of the Act states that, if an application is made under s 225, the Commission must terminate the agreement if any of the requirements of ss 226(1)(a), (b) or (c) is met. Relevantly in this case, the requirement of clause 226(1)(b) will be made out if the Commission is satisfied that the agreement does not, and is not likely to, cover any employees.

[4] Section 226(1A) provides that the Commission must terminate an agreement under s 226(1) only if it is satisfied that it is appropriate in all the circumstances to do so.

[5] Section 226(3) states that, in deciding whether to terminate the agreement, the Commission must consider the views of any employees covered by the agreement, each employer, and each employee organisation.

[6] Section 226(4) requires the Commission to have regard to whether the application was made at or after the notification time for a proposed enterprise that will cover the same or substantially the same group of employees as the existing agreement; whether bargaining for the proposed enterprise agreement is occurring; and 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.

[7] Section 226(5) provides that in deciding whether to terminate the agreement, the Commission may also have regard to any other relevant matter.

[8] The company's F24C declaration, signed by Lance Gallagher, the group human resources manager, states that the company has no current employees covered by the Agreement and that this will continue into the future, as the Agreement is no longer aligned with the company's business model.

[9] The CFMEU has advised the Commission that it does not oppose the application and does not wish to be heard in relation to it.

[10] Based on the material before the Commission, including the declaration of Mr Gallagher, 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 therefore met.

[11] In connection with s 226(3), the view of the employer is that the Agreement should be terminated. The view of the CFMEU is that it does not oppose the application and does not wish to be heard. There are no employees covered by the Agreement.

[12] None of the circumstances referred to in s 226(4) are present in this case. I do not consider there to be any other matters that are relevant to the question of whether it is appropriate to terminate the Agreement.

[13] I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 16 December 2025.

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