Bell Wiggins Pty Ltd

[2024] FWCA 3114

[2024] FWCA 3114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Bell Wiggins Pty Ltd

(AG2024/3174)

BELL WIGGINS PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 AUGUST 2024

Application for termination of the Bell Wiggins Pty Ltd & ETU Enterprise Agreement 2021 – 2025.

1. Bell Wiggins Pty Ltd (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate Bell Wiggins Pty Ltd & ETU Enterprise Agreement 2021 – 2025[1] (the Agreement). The Agreement is expressed to cover the Applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) and employees of the Applicant based in Victoria, including when those employees are temporarily required to perform work covered by parts A, B and C of the Agreement outside of Victoria. The Agreement’s nominal expiry date is 31 March 2025.

2. Sections 222 and 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

   “222 Application for FWC 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 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 FWC considers it fair to extend that period—within such further period as 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.”

1. The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 18 May 2023[2]. It was approved to operate from 25 May 2023 with a nominal expiry date of 31 March 2025.

1. I note the Form F24A declaration of Michael Wiggins (Director of the Applicant), states that a secret ballot of employees was conducted on-site on 14 August 2024 and resulted in a majority of employees who participated in the ballot, voting in support of termination of the Agreement. The application was filed in the Commission on 20 August 2024.

1. The ETU is covered by the Agreement and wrote to my chambers on 26 August 2024 and advised that they do not oppose the application.

1. Based on the material contained in the employer’s declaration filed with the application, I am satisfied that employees were afforded a reasonable opportunity to approve the termination of the Agreement (s.223(a)) and that a valid majority of employees covered by the Agreement approved its termination (s.223(b)). I am also satisfied that there are no other grounds for believing that employees have not agreed to the termination of the Agreement (s. 223(c)) and that it is appropriate to terminate the Agreement taking into account the views of the ETU (s. 223(d)). Having been satisfied as to each of the relevant requirements in s.223, I must terminate the Agreement.

1. The termination will operate from 27 August 2024. An order giving effect to this decision will be issued in conjunction with this decision. 

DEPUTY PRESIDENT

[1] AE520064.

[2] [2023] FWCA 1436.

Printed by authority of the Commonwealth Government Printer

<AE520064  PR778665>