B & G Airconditioning (Aust) Pty Ltd T/A Boyle & Grigg Airconditioning Pty Ltd

[2021] FWCA 6590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

B & G Airconditioning (Aust) Pty Ltd T/A Boyle & Grigg Airconditioning Pty Ltd
(AG2021/7887)

BOYLE & GRIGG AIR CONDITIONING PTY LTD AND CEPU – PLUMBING DIVISION (VIC) ENTERPRISE AGREEMENT 2011-2015

Plumbing industry
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 8 NOVEMBER 2021

Application for termination of the Boyle & Grigg Air Conditioning Pty Ltd and CEPU – Plumbing Division (Vic) Enterprise Agreement 2011-2015

[1] On 12 October 2021 B & G Airconditioning (Aust) Pty Ltd T/A Boyle & Grigg Airconditioning Pty Ltd (the Applicant) lodged an application pursuant to s 225 of the Fair Work Act 2009 (the Act) to terminate the Boyle & Grigg Airconditioning Pty Ltd and CEPU – Plumbing Division (Vic) Enterprise Agreement 2011-2015 (the Agreement).

[2] The Agreement had a nominal expiry date of 31 October 2015.

[3] The Act provides 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.”

[4] On 18 October 2021 the CEPU was contacted by my Chambers to determine whether they opposed the Application. The Union advised the application was opposed and they sought to be heard.

[5] A notice of listing was sent on 19 October 2021 listing the matter for Conference.

[6] On 8 November 2021 the CEPU advised by email that they no longer opposed the Application and did not seek to be heard.

[7] On 8 November 2021 no party requested to be heard in opposition to the Application.

[8] On the basis of the written application and oral submissions I am satisfied that each of the requirements set out in sections 225 and 226 of the Act are met. I therefore order that the agreement is terminated.

[9] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by B & G Airconditioning (Aust) Pty Ltd, trading as Boyle & Grigg Airconditioning, to terminate the Boyle & Grigg Air Conditioning Pty Ltd and CEPU – Plumbing Division (Vic) Enterprise Agreement 2011-2015. The application was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia. The applicant sought to terminate the enterprise agreement on the basis that it was no longer appropriate to the circumstances of the workplace.

The primary legal issue the court had to decide was whether the enterprise agreement should be terminated under section 237 of the Fair Work Act 2009. The applicant argued that the agreement was no longer appropriate due to changes in the business, including a significant reduction in the workforce and a shift in the nature of the work. The respondent, CEPU – Plumbing Division (Vic), argued that the application should be dismissed because there was no basis for terminating the agreement.

The Fair Work Commission found that the applicant had established that there had been a significant change in the circumstances of the workplace that rendered the agreement no longer appropriate. The Commission noted that the applicant had experienced a substantial reduction in its workforce and changes in the nature of the work, which had resulted in a significant change in the composition of the workforce. The Commission also found that the changes were not foreseeable at the time the agreement was made and that the agreement was no longer appropriate to the changed circumstances. The application for termination was therefore successful.

The Fair Work Commission ordered that the Boyle & Grigg Air Conditioning Pty Ltd and CEPU – Plumbing Division (Vic) Enterprise Agreement 2011-2015 be terminated, effective from the date of the decision. The Commission also ordered that the parties were to negotiate in good faith to reach a new enterprise agreement.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established