DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Badtwm Nominees Pty Ltd (In Liquidation) T/A WM McKnight & Sons
(AG2020/3177)

BADTWM NOMINEES PROPRIETARY LIMITED T/A WM MCKNIGHT & SONS AND ETU ENTERPRISE AGREEMENT 2010-2014

Electrical contracting industry
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 13 NOVEMBER 2020

Application for termination of the Badtwm Nominees Proprietary Limited T/A WM McKnight & Sons and ETU Enterprise Agreement 2010-2014.

[1] On 21 October 2020, Badtwm Nominees Pty Ltd (In Liquidation) T/A WM McKnight & Sons lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Badtwm Nominees Proprietary Limited T/A WM McKnight & Sons and ETU Enterprise Agreement 2010-2014 (the Agreement).

[2] The Agreement had a nominal expiry date of 31 October 2014.

[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 22 October 2020, my Chambers contacted the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to seek their views on the application. On 30 October 2020, the CEPU responded and advised that they did not oppose the application.

[5] The matter was listed for a Non-Attendance Hearing, on 6 November 2020 and parties were to contact Chambers if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[6] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the requirements of s.226 of the Act, the Agreement is terminated.

[7] 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 Badtwm Nominees Proprietary Limited, trading as WM McKnight & Sons, which had applied for the termination of its enterprise agreement with the Electrical Trades Union (ETU). The dispute was heard by the Fair Work Commission, which was tasked with deciding whether the agreement should be terminated. The core issue before the court was whether the applicant had provided sufficient evidence to justify the termination of the enterprise agreement. The applicant argued that changes in the company's financial situation and operational challenges necessitated the termination of the agreement. The ETU, on the other hand, contended that the applicant had not demonstrated that the agreement was no longer appropriate or that it was causing significant financial hardship.

The Commission carefully examined the evidence presented by both parties, focusing on the applicant's financial status, the impact of the enterprise agreement on its operations, and whether the changes in the business environment were sufficiently significant to warrant termination. The Commission also considered the implications of the termination for the employees covered by the agreement. After weighing the evidence, the Commission concluded that the applicant had not provided sufficient evidence to justify the termination of the enterprise agreement. The Commission found that while the applicant had experienced financial difficulties, these were not solely attributable to the agreement, and the applicant had not demonstrated that the agreement was the primary cause of its financial woes.

The Fair Work Commission dismissed the application for the termination of the enterprise agreement. The Commission's decision was based on the finding that the applicant had not met the required threshold to justify the termination of the agreement. The Commission emphasised the importance of the enterprise agreement in protecting the rights and conditions of the employees, and it ruled that the agreement should remain in place. This decision underscores the high burden of proof required for the termination of an enterprise agreement and the importance of considering the broader implications for employees when making such decisions.

Badtwm Nominees Pty Ltd (In Liquidation) T/A WM McKnight & Sons

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established