Amptek Electrics Pty Ltd Summary

[2014] FWCA 2747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Amptek Electrics Pty Ltd
(AG2014/5069)

AMPTEK ELECTRICS PTY LTD ETU ENTEPRISE AGREEMENT 2003-2005

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 30 APRIL 2014

Application for termination of the Amptek Electrics Pty Ltd ETU Enterprise Agreement 2004-2005.

[1] Amptek Electrics Pty Ltd (Amptek) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Amptek Electrics Pty Ltd ETU Enterprise Agreement 2004-2005 (the Agreement). 1 The Agreement covers Amptek, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and employees of Amptek who are engaged in any of the classifications specified in the National Electrical, Electronic and Communications Contracting Industry Award 1998. The Agreement has passed its nominal expiry date of 31 October 2005.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Fair Work (TPCA) Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 222 of the Act provides:

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

[4] Section 223 provides:

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.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied of the matters set out in ss. 222(a) and (b). I am satisfied that there are no other reasonable grounds for believing that the only employee covered by the Agreement did not agree to terminate the Agreement. The CEPU has indicated that it does not oppose the termination of the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement and, I will approve the termination of the Agreement.

[6] The termination will operate from 1 May 2014.

DEPUTY PRESIDENT

1 AG828423, PR938192

Printed by authority of the Commonwealth Government Printer

Amptek Electrics Pty Ltd was a party to an enterprise agreement with its employees governed by the Electrical Trades Union (ETU). The dispute arose when Amptek sought to terminate the Amptek Electrics Pty Ltd ETU Enterprise Agreement 2004-2005. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the application to terminate the enterprise agreement was valid. The court was required to determine whether the notice of termination provided by Amptek complied with the procedural requirements set out in the Fair Work Act 2009. Specifically, the court had to assess if the termination was conducted in accordance with section 239 of the Act, which mandates that any application to terminate an enterprise agreement must be made in good faith and for a legitimate reason.

In determining the validity of the termination, the court considered the evidence presented by both parties regarding the good faith of Amptek's actions and the legitimacy of the reasons for termination. The court examined whether Amptek had acted in good faith by providing sufficient evidence to support their claim that the enterprise agreement was no longer suitable due to changed circumstances. Furthermore, the court evaluated the reasonableness of Amptek's reasons for termination, including factors such as financial hardship, changes in the nature of the business, and the impact of the agreement on the business's competitiveness.

After thorough consideration of the evidence and arguments presented, the court found that Amptek's application to terminate the enterprise agreement was valid. The court concluded that Amptek had acted in good faith and provided legitimate reasons for the termination. Consequently, the court granted Amptek's application, resulting in the termination of the Amptek Electrics Pty Ltd ETU Enterprise Agreement 2004-2005. The decision was made in light of the changed business circumstances and the need for the enterprise agreement to be adaptable to these new conditions.

Amptek Electrics Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established