AE Smith & Son (SEQ) Pty Ltd

[2017] FWCA 4385

[2017] FWCA 4385

The attached document replaces the document previously issued with the above code on 23 August 2017.

Correction made to the name and date at paragraph [1].

Nahum Moreau

Associate to Commissioner Hunt

Dated 23 August 2017.

[2017] FWCA 4385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

AE Smith & Son (SEQ) Pty Ltd
(AG2017/3561)

AE SMITH & SON (SEQ) PTY LTD AND CEPU PLUMBING DIVISION UNION COLLECTIVE AGREEMENT 2011 - 2015

Plumbing industry
COMMISSIONER HUNT	BRISBANE, 23 AUGUST 2017

Application for termination of the AE Smith & Son (SEQ) Pty Ltd and CEPU Plumbing Division Union Collective Agreement 2011 - 2015.

[1] On 16 August 2017 AE Smith & Son (SEQ) Pty Ltd (the Company) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the AE Smith & Son (SEQ) Pty Ltd and CEPU Plumbing Division Union Collective Agreement 2011 - 2015 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from the Employer that declared, amongst other things, that there are no employees who are covered by the agreement.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are an employee organisation which is covered by the Agreement. The CEPU does not oppose termination of the application.

The legislation

[4] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are 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.”

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[5] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 23 August 2017.

COMMISSIONER

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