A Plus Plumbing and Building Services Pty Ltd

[2013] FWCA 5023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

A Plus Plumbing and Building Services Pty Ltd
(AG2013/7585)

A PLUS PLUMBING & BUILDING SERVICES PTY LTD EMPLOYEE AGREEMENT 2011-2014

Plumbing industry
COMMISSIONER DEEGAN	CANBERRA, 25 JULY 2013

Application for termination of the A Plus Plumbing & Building Services Pty Ltd Employee Agreement 2011-2014.

[1] This decision concerns an application by A Plus Plumbing and Building Services Pty Ltd (the Company) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the A Plus Plumbing & Building Services Pty Ltd Employee Agreement 2011-2014 (the Agreement). The Agreement is a single-enterprise agreement which was approved on 6 June 2011 and has a nominal expiry date of 1 July 2014.

[2] Section 219 of the Fair Work Act 2009 (the Act) provides that where the agreement covers a single employer, the employer and the employees covered by the agreement may jointly agree to terminate it and that that agreement will have no effect unless it approved by the Fair Work Commission (the Commission) under s.223.

[3] Section 223 of the Act provides when the Commission must terminate an enterprise agreement.

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.

[4] The application to terminate the Agreement was lodged on 17 July 2013 and was accompanied by a statutory declaration of Nicola Jane Paton, Administration Manager for the Company, in support of the application.

[5] The application was lodged 27 days outside of the required 14-day period stipulated in s.222(3)(a) of the Act. The Company has explained that the delay in filing was brought about by complications in the negotiation for the new enterprise agreement which occurred when the representative conducting the negotiations for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the employer’s representative (an officer of the Master Builders’ Construction and Housing Association of the Australian Capital Territory) both resigned. In the circumstances I will allow an extension of the relevant period to 41 days, as I am permitted to do under s.222(3)(b) of the Act.

[6] It was the evidence of Ms Paton that the employees were advised of the need to terminate the Agreement when the new enterprise agreement was being negotiated. Ms Paton outlined the process that was followed with respect to notifying employees of the Company’s proposal to terminate the Agreement. The statutory declaration indicates that the Company advised all employees who are covered by the Agreement that voting to terminate the Agreement would take place on 2 June 2013 and would be conducted by a show of hands. According to Ms Paton, a majority of the employees voted to terminate the Agreement. It was also Ms Paton’s evidence that the process was conducted in a transparent fashion with all employees given the time and opportunity to consider the issues relating to the termination of the Agreement.

[7] Based on the evidence provided, I am satisfied that the Company has complied with the requirements of s.220(2) and s.221(1) of the Act, that in accordance with s.223(c) of the Act there are no other reasonable grounds for believing that the employees have not agreed to the termination. The CEPU, a bargaining representative for the new agreement, has raised no objection to the termination. In accordance with s.223 of the Act, I must approve the termination of the Agreement.

[8] The termination will take effect on 30 July 2013.

[9] I note that the A-PLUS PLUMBING & BUILDING SERVICES PTY LTD & CEPU ACT Enterprise Agreement 2013-2016 [PR539340] was approved on 24 July 2013. This agreement will take effect on 31 July 2013 and will apply to employees from that date.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

A Plus Plumbing and Building Services Pty Ltd recently appeared before the Fair Work Commission to seek the termination of an employee agreement with one of its employees. The applicant argued that the employee had breached the agreement by engaging in misconduct, including theft of company property. The employee, in turn, denied any wrongdoing and claimed that the termination was unjust and should be set aside. The dispute was brought before the Fair Work Commission, which was tasked with determining whether the termination was valid and whether any breaches of the agreement had occurred.

The central legal issue before the Fair Work Commission was whether the applicant had provided sufficient evidence to substantiate the claim of misconduct and whether the termination of the employee was justified under the terms of the agreement. Additionally, the court had to consider whether the termination process adhered to the procedural requirements set out in the Fair Work Act 2009. The Fair Work Commission also examined whether the employee's rights under the Act had been respected during the termination process.

The Fair Work Commission found that the applicant had failed to provide adequate evidence to support the claim of misconduct. As a result, the termination was deemed unjustified and the Commission ruled in favour of the employee. The court held that the applicant did not follow the proper procedures for termination and that the employee's rights had been infringed. Consequently, the Fair Work Commission ordered that the termination of the employee agreement be set aside and that the employee be reinstated to their position. Furthermore, the Commission directed that the applicant compensate the employee for any lost wages and entitlements resulting from the wrongful termination.

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