Brimar Electrical Services Pty Ltd T/A Brimar

[2019] FWCA 7991

[2019] FWCA 7991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Brimar Electrical Services Pty Ltd T/A Brimar
(AG2019/4256)

BRIMAR EMPLOYEE COLLECTIVE AGREEMENT 2016

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 26 NOVEMBER 2019

Application for termination of the Brimar Electrical Employee Collective Agreement 2016.

[1] On 8 November 2019 Brimar Electrical Services Pty Ltd T/A Brimar (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Brimar Electrical Employee Collective Agreement 2016 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration of Mr Danial Smith, General Manager of the Employer. Mr Smith declared that the Employer wished to apply the Electrical, Electronic and Communications Contracting Award 2010 (the Award) to its business, submitting that both the Employer and its employees would benefit from removing administrative tasks associated with the operation of the Agreement. Although not stated within Mr Smith’s statutory declaration, the Employer submitted at the time of lodging its application that it had conducted a vote of its employees regarding the termination of the Agreement and all employees had voted to terminate the Agreement.

[3] On 14 November 2019, following allocation of this matter to me, my Associate wrote to the Employer asking whether the Employer might wish to amend its application to be made pursuant to s.222 of the Act, in light of the Employer’s vote of employees. Regardless of the nature of the application with which the Employer wished to proceed, I directed the Employer to provide copies of the completed voting forms it had received from employees.

[4] Later on 14 November 2019, Mr Smith wrote to my chambers and confirmed that the Employer wished to press its application pursuant to s.225 of the Act. Mr Smith provided seven emails from covered employees voting to terminate the Agreement. Mr Smith also stated that the other two employees covered by the Agreement had not provided their vote by email; one of them had resigned prior to the vote being cast and the other had cast his vote orally to terminate the Agreement.

[5] After considering the further information provided by the Employer, I directed the Employer to confirm what terms and conditions under the Agreement, if any, would continue to apply to the employees after the termination of the Agreement. Mr Smith wrote to my chambers and stated that “…existing entitlements and pay structures for employees employed currently under the agreement will remain. The intent was that all current employees would maintain the current terms and conditions of employment, including current pay rates. The only thing that we would not carry over is the automatic pay increase on the anniversary of the original agreement with the intent that the employees would be engaged directly and individually in this case…”.

[6] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

Consideration

[7] Based on the material contained in the statutory declaration filed with the application and the further information provided by the Employer and in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] The employees covered by the Agreement will be covered by the Award following the Agreement’s termination, as will any new employees of the Employer. I note the Employer’s intention that the terms and conditions and rates of pay under the Agreement will continue to be applied to the current employees, except for annual increases to the rates of pay under the Agreement. As an aside, I note that the current employees have voted unanimously to terminate the Agreement.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[10] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect from today, 26 November 2019.

COMMISSIONER

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