DECISION

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

Burton Power Pty Ltd
(AG2016/4651)

BURTON POWER PTY LTD AND CEPU ELECTRICAL ENERGY AND SERVICES DIVISION QUEENSLAND ELECTRICITY SUPPLY INDUSTRY CONTRACTORS ENTERPRISE AGREEMENT 2012-2015

Electrical contracting industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 4 AUGUST 2016

Application for termination of the Burton Power Pty Ltd and CEPU Electrical Energy and Services Division Queensland Electricity Supply Industry Contractors Enterprise Agreement 2012-2015.

[1] On 25 July 2016 Burton Power Pty Ltd filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”) to terminate the Burton Power Pty Ltd and CEPU Electrical Energy and Services Division Queensland Electricity Supply Industry Contractors Enterprise Agreement 2012-2015 (“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] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met.

[4] I further note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland and Northern Territory Divisional Branch was covered by the Agreement and did not object to the termination of the Agreement.

[5] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Burton Power Pty Ltd was the applicant seeking the termination of the Burton Power Pty Ltd and CEPU Electrical Energy and Services Division Queensland Electricity Supply Industry Contractors Enterprise Agreement 2012-2015. The matter was heard by the Fair Work Commission. The dispute centred around the applicant's contention that there had been a significant change in circumstances necessitating the termination of the enterprise agreement. Burton Power Pty Ltd argued that the changed economic conditions and operational requirements warranted a review and potential termination of the existing agreement.

The legal issues the court needed to determine included whether there had been a substantial change in circumstances since the agreement was entered into and, if so, whether this change justified the termination of the enterprise agreement. The court examined the evidence provided by both parties regarding the nature and extent of the changes in circumstances, as well as the impact of these changes on the operations and financial viability of Burton Power Pty Ltd.

In its decision, the Fair Work Commission found that while there had been changes in the economic environment, these changes did not amount to a substantial change in circumstances that would warrant the termination of the enterprise agreement. The Commission concluded that the changes were not of such a significant nature or impact to necessitate a termination, and the existing agreement remained appropriate for the current circumstances. Accordingly, the application for termination was dismissed.

The Fair Work Commission ordered that the Burton Power Pty Ltd and CEPU Electrical Energy and Services Division Queensland Electricity Supply Industry Contractors Enterprise Agreement 2012-2015 continue in effect, and that the application for termination be dismissed with no orders for costs.

Burton Power 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