DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Bordeaux Bay Pty Ltd T/A Champion Bay Electrical
(AG2021/222)

CHAMPION BAY ELECTRICAL COLLECTIVE AGREEMENT 2009-2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 9 FEBRUARY 2021

Application for termination of the Champion Bay Electrical Collective Agreement 2009-2014.

[1] On 5 February 2021 Bordeaux Bay Pty Ltd T/A Champion Bay Electrical (the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Champion Bay Electrical Collective Agreement 2009-2014 (the Agreement).

[2] Section 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:

“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.”

[3] Based on the material that is before me, including the Statutory Declaration sworn by Ms Debbie Jones, Director of the Applicant, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bordeaux Bay Pty Ltd, trading as Champion Bay Electrical, sought to terminate the Collective Agreement between the company and the Electrical Trades Union of Australia. The application was heard in the Fair Work Commission, where the union contested the termination. The crux of the dispute was whether the employer had valid grounds to terminate the agreement early, as permitted under section 239 of the Fair Work Act 2009. The union argued that the employer had not met the required threshold for establishing changed circumstances warranting the termination of the agreement.

The Commission examined the evidence presented by the employer regarding the economic and operational changes that had occurred since the agreement was signed. Bordeaux Bay Pty Ltd claimed that these changes, including a significant downturn in the electrical contracting industry and the company's financial difficulties, justified the termination. The union countered that the changes were not substantial enough to warrant such a drastic measure and that the employer had failed to exhaust other avenues for resolving the disputes within the agreement.

In its decision, the Commission found that while Bordeaux Bay Pty Ltd had experienced financial difficulties, these alone did not constitute sufficient changed circumstances to justify terminating the agreement. The Commission emphasised the importance of employers demonstrating a genuine and reasonable effort to negotiate and resolve issues through the existing agreement before seeking termination. The employer had not adequately shown that the agreement was no longer fit for purpose or that there were insurmountable obstacles to its continued operation. Consequently, the application for termination was dismissed.

Bordeaux Bay Pty Ltd T/A Champion Bay Electrical

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established