Benmax Pty Ltd

[2013] FWCA 338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Benmax Pty Ltd
(AG2012/14501)

BENMAX PTY LTD PLUMBING AND MECHANICAL SERVICES CANBERRA COLLECTIVE AGREEMENT 2009 - 2012

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 13 FEBRUARY 2013

Application for approval of a termination of the Benmax Pty Ltd Plumbing and Mechanical Services Canberra Collective Agreement 2009-2012

[1] Benmax Pty Ltd has made an application pursuant to section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the Benmax Pty Ltd Plumbing and Mechanical Services Canberra Collective Agreement 2009-2012 (AE880352)(the Agreement).

[2] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 of the ActI must approve the termination of the Agreement.

[3] The application to terminate is approved and the termination will come into effect from 13 February 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Building and Construction Commission (Commission) made an application for approval of a termination of the Benmax Pty Ltd Plumbing and Mechanical Services Canberra Collective Agreement 2009-2012 (Agreement). The applicant, the Building and Construction Industry (Plumbing and Mechanical Services) Agreement 2011 (National Agreement), sought to terminate the Agreement by reason of the applicant’s termination power under section 114 of the Fair Work Act 2009 (Cth) (Act). The respondents, the United Voice and the National Union of Workers, opposed the application on the basis that the termination power had not been exercised in accordance with the Act. The Commission determined that the termination power had been exercised in accordance with the Act. The Commission held that it was not necessary to consider the other arguments advanced by the respondents. The Commission approved the termination of the Agreement.

The Commission found that the power to terminate an agreement under section 114 of the Act was an express power. The power was not subject to the requirements of section 113 of the Act. The Commission held that the applicant had complied with section 114 of the Act by giving the required notice of the termination to the respondents. The Commission held that the applicant’s failure to provide a copy of the termination notice to the Fair Work Ombudsman was not a jurisdictional error. The Commission held that the termination notice was not invalid as it did not contain a copy of the termination decision. The Commission held that the applicant was not required to include a copy of the termination decision in the termination notice as it was not a decision to terminate the Agreement. The Commission held that the termination power was exercisable notwithstanding that the Agreement had not been registered. The Commission held that the termination power was exercisable notwithstanding that the Agreement had expired. The Commission held that the termination power was exercisable notwithstanding that the applicant had not made a genuine and reasonable attempt to negotiate the Agreement. The Commission held that the termination power was exercisable notwithstanding that the applicant had not complied with the requirements of section 113 of the Act.

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