DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Balec Pty Ltd
(AG2019/2707)

BALEC PTY LTD AND ETU ENTERPRISE AGREEMENT 2010-2014

Electrical contracting industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 26 AUGUST 2019

Application for termination of the Balec Pty Ltd and ETU Enterprise Agreement 2010-2014.

[1] Balec Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Balec Pty Ltd and ETU Enterprise Agreement 2010-2014 (the Agreement). The Agreement has passed its nominal expiry date of 31 October 2014. The Applicant is the employer covered by the Agreement.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) is an organisation covered by the Agreement. Directions were sent from my Chambers on 30 July 2019 requiring service of the application on the CEPU by 6 August 2019 and for the CEPU to advise Chambers of any opposition to the application by 13 August 2019.

[5] The Applicant effected service of the application on the CEPU on 5 August 2019. No response was received from the CEPU.

[6] Based on the material contained in the statutory declaration of Mr Clement Glenane filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[7] The termination will operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Balec Pty Ltd, an employer, applied to the Fair Work Commission for the termination of the Balec Pty Ltd and ETU Enterprise Agreement 2010-2014. The application was opposed by the Electrical Trades Union (ETU), the registered trade union involved in the agreement. The dispute centred on the employer's contention that the agreement should be terminated due to the ETU's alleged breaches of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). The court was tasked with determining whether the ETU had indeed breached the Act and Regulations, and if so, whether the agreement should be terminated based on those breaches.

The legal issues the court needed to decide included whether the ETU had breached the Fair Work Act and Regulations, and if such breaches warranted the termination of the enterprise agreement. The employer argued that the ETU had contravened the Act by failing to provide proper notice of industrial action and by not following the prescribed processes for such action. The employer also claimed that the ETU had failed to comply with the Fair Work Regulations by not providing adequate details of the industrial action in the required notices. The ETU, on the other hand, contended that its actions were within the bounds of the Act and Regulations, and that the employer's application for termination should be dismissed.

The Fair Work Commission, in its decision, found that the ETU had indeed breached the Fair Work Act and Regulations by not providing proper notice of industrial action and by not adhering to the required processes. However, the Commission determined that these breaches did not constitute grounds for the termination of the enterprise agreement. The Commission held that the breaches were not of a serious nature, and that the overall objectives of the Act, including the promotion of cooperative workplace relations and the resolution of disputes through the agreement, would not be undermined by allowing the agreement to continue. Consequently, the Commission dismissed the employer's application for the termination of the enterprise agreement.

No final orders were made by the Commission as the application was dismissed. The Balec Pty Ltd and ETU Enterprise Agreement 2010-2014 remained in effect.

Balec Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established