Comfort Engineering Pty Ltd T/A Ductrite

[2020] FWCA 4342

[2020] FWCA 4342

FAIR WORK COMMISSION

DECISION

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

Comfort Engineering Pty Ltd T/A Ductrite
(AG2020/2070)

Plumbing industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 18 AUGUST 2020

Application for termination of the Ductrite On Site Collective Agreement 2012 - 2015.

[1] On 15 July 2020, Comfort Engineering Pty Ltd T/A Ductrite (the applicant employer or Ductrite)made an application to terminate the Ductrite On Site Collective Agreement 2012 - 2015 (the Agreement) under section 222 of the Fair Work Act 2009 (the FW Act).

[2] Section 222 concerns applications for termination where termination has been agreed by employees.

[3] This matter was the subject of a hearing on 18 August 2020.

[4] The applicant employer is entitled to apply for termination of the Agreement pursuant to section 222 of the FW Act.

[5] Sections 222 and 223 of the FW Act state:

“222 Application for FWC approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances FWC considers it fair to extend that period—within such further period as FWC allows.

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, 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.”

[6] The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 27 March 2013. 1 It was approved to operate from 4 April 2013 with a nominal expiry date of 1 July 2015. It has now passed its nominal expiry date.

[7] I issued directions on 20 July 2020.

[8] In accordance with my directions, employees covered by the Agreement and their representatives were provided an opportunity to indicate whether any objection would be taken to the termination application or if they sought to be heard.

[9] No objection has been indicated by any of the employees covered by the Agreement or their representatives and no employee has sought to be heard.

[10] I have considered the material provided in the application and by Mr Bogers pursuant to section 223 of the FW Act. This includes the Statutory Declarations of Mr Bogers lodged with the Commission on 15 July 2020 and 6 August 2020 and the submissions made on 18 August 2020. I note that the Statutory Declaration of Mr Bogers indicates that meetings were held between the business and employees on various sites in relation to the termination on 22 June 2020 and 23 June 2020 and a secret ballot of employees was held on site on 3 July 2020 at which time a majority of employees voted to terminate the Agreement.

[11] On 6 August 2020 Mr Bogers provided a statutory declaration stating that employees were provided with the Notice of Listing, directions, the 15 July 2020 statutory declaration of Mr Bogers and the application as directed by the Commission.

[12] I am required to deal with this matter in accordance with the provisions of the FW Act. I am provisionally satisfied as to each of the matters contained in section 222 and 223 of the FW Act.

[13] My provisional conclusions are as follows.

[14] I am satisfied that there are no reasonable grounds to believe that employees have not agreed to terminate the Agreement. I find that a majority of employees voted on 3 July 2020 to terminate the Agreement.

[15] I am also satisfied that there is no basis to consider that it is inappropriate to terminate the agreement taking into account the views of the employees or their representatives as no such submissions were provided.

[16] Accordingly, my provisional view is that it is appropriate to terminate the Agreement and to approve its termination.

[17] Ductrite has requested a four week period before the termination takes effect.

[18] This appears reasonable. My provisional view is that the termination will come into effect from 12.00am on Tuesday 15 September 2020.

Post hearing development

[19] Since proceedings concluded on 18 August 2020 it has been drawn to my attention that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical, Energy, and Services Division) South Australian Branch (CEPU) was not served with the application nor the subsequent Directions and Notice of Listing.

[20] The CEPU is not expressed in the Commission’s 2013 decision approving the Agreement as being covered by the Agreement (as would have been open under sections 183 and 201(2) of the FW Act). However, clause 2 of the Agreement recognises the CEPU as having had past representative capacity (though the agreement applies to employees whether CEPU members or not).

[21] In these circumstances, and notwithstanding employees having been provided a right to appear directly or via a representative at the 18 August 2020 hearing, I consider it appropriate to provide a further opportunity for the CEPU to be heard if it wishes to do so.

[22] I will direct that the CEPU be served by the Commission with these proceedings (including this Decision) by close of business 19 August 2020. I will direct that if the CEPU wishes to be heard, it file a written submission by close of business 21 August 2020.

[23] Should the CEPU not file a submission by this date this provisional decision will be final and I will issue an Order giving effect to this decision on the abovementioned terms. Should the CEPU wish to be heard, I will consider its submission and issue further directions should it be appropriate to do so.

DEPUTY PRESIDENT

Appearances:

Mr R Bolger for and on behalf of Comfort Engineering Pty Ltd T/A Ductrite

Hearing details:

2020

Adelaide (by phone)

18 August.

 1   [2013] FWCA 1903

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