[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;

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

Printed by authority of the Commonwealth Government Printer

AE Smith & Son (SEQ) Pty Ltd applied to the Fair Work Commission to terminate the Collective Agreement between the company and the CEPU Plumbing Division Union. The dispute arose due to significant disagreements between the parties on the terms and conditions of employment, particularly concerning wage rates and working conditions. The Fair Work Commission was tasked with determining whether the application met the legal criteria for terminating the agreement.

The legal issues before the Commission were whether the application for termination met the statutory requirements under the Fair Work Act, specifically section 239, which outlines the conditions for terminating an enterprise agreement. The Commission had to consider whether the application was made in good faith, whether the agreement was no longer appropriate, and if the parties had genuinely attempted to resolve their disputes through bargaining.

The Commission found that the application did not meet the statutory criteria for termination. It concluded that the company had not demonstrated that it had genuinely attempted to bargain in good faith and that the agreement was no longer appropriate. The Commission held that the application was not made in good faith, as the company had not provided sufficient evidence of genuine bargaining efforts. Additionally, the Commission found that the agreement was still suitable for the parties' circumstances.

As a result, the Fair Work Commission dismissed the application for termination. The Collective Agreement remained in force, and the parties were required to continue their efforts to resolve any disputes through further bargaining. The Commission's decision underscored the importance of genuine bargaining efforts and the need for parties to adhere to the legal requirements when seeking to terminate an enterprise agreement.

AE Smith & Son (SEQ) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established