AusInstrelec Pty Ltd Summary

[2018] FWCA 7684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

AusInstrelec Pty Ltd

(AG2018/7009)

AUS INSTRELEC AGREEMENT 2016

Electrical contracting industry
COMMISSIONER MCKINNON	MELBOURNE, 19 DECEMBER 2018

Application for termination of the Aus Instrelec Agreement 2016.

On 18 July 2018, AusInstrelec Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Aus Instrelec Agreement 2016 (Agreement).

The Agreement has a nominal expiry date of 28 November 2020.

The relevant provisions of the Act are as follows:

“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.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

In the circumstances and based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant has complied with s.220(2) of the Act and that, having regard to the matters identified in ss.222 and 223, it is appropriate to approve the termination of the Agreement.

The Agreement is terminated with effect from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

AusInstrelec Pty Ltd applied for the termination of the Aus Instrelec Agreement 2016, which was before the Fair Work Commission. The dispute centred around the validity and enforceability of the agreement itself, with the applicant asserting that the agreement was no longer fit for purpose and had effectively been rendered redundant by changes in the industry and market conditions. The respondent, on the other hand, argued that the agreement remained relevant and was still serving its intended purpose of providing a framework for the employment conditions of electricians and electrical contractors.

The court was tasked with determining whether the agreement met the criteria for termination as outlined in the Fair Work Act 2009. Specifically, the court needed to assess whether the changes in industry conditions and market dynamics were significant enough to warrant a departure from the agreement, and whether the agreement was still fit for purpose. The court also had to consider the impact of the agreement's termination on the parties involved and the broader implications for the industry.

In delivering its decision, the court examined the evidence presented by both parties regarding the changes in the industry and the agreement's continued relevance. The court found that while there had been some changes in the industry, these did not reach the threshold necessary to warrant the termination of the agreement. The court also noted that the agreement still served its intended purpose and was fit for purpose. As a result, the application for termination was dismissed. The court emphasised the importance of maintaining a stable and predictable framework for employment conditions in the industry, and the need for parties to work together to adapt to changes rather than seeking to terminate agreements.

The Fair Work Commission ordered that the application for the termination of the Aus Instrelec Agreement 2016 be dismissed. The court encouraged the parties to continue working together to address any issues arising from changes in the industry and to explore options for adapting the agreement to meet the needs of the current market conditions.

AusInstrelec Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established