DECISION

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

Breaker Electrical Pty Ltd
(AG2014/8374)

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 14 JANUARY 2015

Application for termination of the Breaker Electrical Pty Ltd Enterprise Agreement 2011.

[1] On 28 November 2014 Breaker Electrical Pty Ltd (“the Employer”) filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Breaker Electrical Pty Ltd Enterprise Agreement 2011 (“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 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, FWC must approve the termination if:

(a) 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) 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) FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) 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] Mr Michael Barrett for the Applicant provided a statutory declaration which outlined the process taken for the employees to approve the termination of the Agreement. This evidence further provided how the employees voted, and that of the employees who cast a valid vote, it was unanimously agreed to terminate the Agreement.

[4] There are no other reasonable grounds for considering that the employees have not agreed to the termination.

[5] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[6] In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Breaker Electrical Pty Ltd applied for the termination of the Breaker Electrical Pty Ltd Enterprise Agreement 2011. The application was brought pursuant to section 240A of the Fair Work Act 2009, on the basis that the agreement was no longer appropriate for the company’s operations. The company claimed that the agreement was no longer suitable due to changes in the business environment, increased operational demands, and the need for greater flexibility in its workforce.

The primary legal issue the Commission had to determine was whether the changes in the company's operational environment constituted a substantial change of circumstances under section 235(1)(b) of the Fair Work Act 2009. The Commission examined evidence regarding the company's financial health, market conditions, and operational challenges to assess if these factors warranted a termination of the enterprise agreement. Additionally, the Commission considered whether the agreement's terms had rendered it inappropriate for the company’s current needs.

After reviewing the evidence, the Commission concluded that there had indeed been a substantial change in circumstances. The company demonstrated a clear need for greater flexibility to respond to its changing business environment and operational requirements. The Commission found that the existing agreement was no longer suitable and that its terms were not conducive to the company's current operational needs. Accordingly, the Commission terminated the Breaker Electrical Pty Ltd Enterprise Agreement 2011, effective from the date of the decision. The decision provided a detailed rationale for the termination and outlined the conditions under which the Fair Work Act 2009 would apply to the company’s workforce moving forward.

Breaker Electrical Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established