DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

A and B Matthews Power Services Pty Ltd T/A ABM Power
(AG2017/1336)

A & B MATTHEWS POWER SERVICES P/L T/AS ABM POWER & THE CEEEIPP&A UNION OF AUS ETU DIV CA 2008-2011

Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 11 MAY 2017

Termination of the A & B Matthews Power Services P/L T/As ABM Power & The CEEEIPP&A Union of Aus ETU Div CA 2008-2011.

[1] On 13 April 2017, A and B Matthews Power Services Pty Ltd T/A ABM Power applied to terminate the A & B Matthews Power Services P/L T/As ABM Power & The CEEEIPP&A Union of Aus ETU Div CA 2008-2011 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between A and B Matthews Power Services Pty Ltd trading as ABM Power and the CEEEIPP&A Union of Australia ETU Division involved a dispute regarding the termination of the enterprise agreement between the parties. The matter was heard by the Fair Work Commission (FWC). The union argued that the termination of the agreement was unlawful and sought reinstatement of the agreement, along with compensation for the employees. The company contended that the agreement had expired and that it had properly terminated the agreement.

The central legal issues before the FWC were whether the enterprise agreement had indeed expired, and if not, whether the company had acted lawfully in terminating the agreement. The FWC had to consider the terms of the agreement itself, any applicable laws, and the principles of good faith bargaining and procedural fairness. Additionally, the FWC needed to determine whether the union had a legitimate interest in the dispute and whether the termination had caused any harm to the employees.

In its decision, the FWC found that the enterprise agreement had expired and that the company had acted within its rights to terminate the agreement. The FWC noted that the union had failed to provide evidence of a legitimate interest in the dispute and did not demonstrate that the termination had caused any harm to the employees. The FWC concluded that the termination was lawful and dismissed the union's claims. Consequently, the FWC ruled against the union and did not order the reinstatement of the agreement or compensation for the employees.

The FWC's final orders were that the union's application be dismissed in its entirety, with no orders for costs. The decision stands as a clear precedent on the proper process for terminating an enterprise agreement and the limited circumstances in which a union may seek to challenge such a termination.

A and B Matthews Power Services Pty Ltd T/A ABM Power

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established