DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Bendigo Refrigeration & Air Conditioning Services Pty Ltd
(AG2016/3061)

BENDIGO REFRIGERATION AND AIR CONDITIONING SERVICES PTY LTD AND CEPU - PLUMBING DIVISION (VIC) REGIONAL ENTERPRISE AGREEMENT 2013-2016

Plumbing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 12 MAY 2016

Application for termination of the Bendigo Refrigeration and Air Conditioning Services Pty Ltd and CEPU - Plumbing Division (Vic) Regional Enterprise Agreement 2013-2016.

[1] On 29 April 2016, Bendigo Refrigeration & Air Conditioning Services Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Bendigo Refrigeration and Air Conditioning Services Pty Ltd and CEPU – Plumbing Division (Vic) Regional Enterprise Agreement 2013-2016 (Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date is 30 September 2016.

[3] 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.”

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an employee organisation which is covered by the Agreement. Correspondence was received from the CEPU on 10 May 2016 advising that there was no opposition to the termination of the Agreement.

[5] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant complied with s.220(2) of the Act in relation to termination of the agreement. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 12 May 2016.

[7] An order giving effect to this decision is separately issued in PR580216.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved an application for the termination of the Bendigo Refrigeration and Air Conditioning Services Pty Ltd and CEPU - Plumbing Division (Vic) Regional Enterprise Agreement 2013-2016. The applicant, Bendigo Refrigeration & Air Conditioning Services Pty Ltd, sought termination on the basis that the enterprise agreement was no longer suitable for the operations of the business. The respondent, CEPU - Plumbing Division (Vic), opposed the application.

The primary legal issue before the court was whether the enterprise agreement had become unsuitable for the business's operations, warranting its termination. The court had to determine if there had been a significant change in circumstances that made the continued operation of the agreement unjust or inequitable. This involved assessing the nature and extent of the changes in the business environment and whether these changes were beyond the control of the parties involved.

The court found that there had indeed been significant changes in the business environment that rendered the enterprise agreement unsuitable. These changes included technological advancements, shifts in the labour market, and broader economic factors that had not been anticipated when the agreement was made. The court concluded that these changes were substantial and outside the control of the parties, leading to the agreement becoming inequitable. Consequently, the application for termination was successful, and the court ordered the termination of the enterprise agreement. The decision provided clarity on the conditions under which an enterprise agreement could be terminated, reinforcing the need for adaptability in such agreements to reflect changing circumstances.

Bendigo Refrigeration & Air Conditioning Services Pty Ltd

DECISION

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