Complete Power Solutions Pty Ltd T/A CPS National

[2019] FWCA 6517

[2019] FWCA 6517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Complete Power Solutions Pty Ltd T/A CPS National
(AG2019/3018)

COMPLETE POWER SOLUTIONS PTY LTD GENERAL EMPLOYEES COLLECTIVE AGREEMENT 2009-2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 19 SEPTEMBER 2019

Application for termination of the Complete Power Solutions Pty Ltd General Employees Collective Agreement 2009-2014.

[1] This Decision concerns an application made by Complete Power Solutions Pty Ltd T/A CPS National (the Applicant) for the termination of the Complete Power Solutions Pty Ltd General Employees Collective Agreement 2009-2014 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument.

[3] Schedule 3 item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Consequently sections 225 and 226 of the Act apply to this application.

[4] 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:

“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.”

[5] The application in this matter was accompanied by a statutory declaration sworn by Mr Ian Shaw who is the Managing Director of the Applicant. Mr Shaw’s statutory declaration addressed the requirements of section 226 in detail.

[6] The Commission issued a Notice of Listing for a hearing on Wednesday, 18 September 2019, at 10.00 a.m. The Notice of Listing included directions for the Applicant to serve on each employee covered by the Agreement, a copy of the application and the statutory declaration and the Notice of Listing, and to confirm to the Commission in writing that this had been complied with. The Notice of Listing also advised that any employee covered by the Agreement could express their view about the application and any such employee submission should be provided to the Chambers email address by Thursday, 12 September 2019, and the Commission would consider those views when deciding whether or not to grant the application to terminate the Agreement.

Consideration

[7] The Applicant has confirmed in writing to the Commission that they have complied with the direction to serve employees with the application, and the statutory declaration and the Notice of Listing. This was further confirmed at the hearing.

[8] As noted in transcript by the Commission at the hearing, the Commission has not received any email from any employee regarding this matter. Further there was no attendance by any employee at the hearing of this matter.

[9] Turning to consider the requirements of section 226, this application does not raise any public interest concerns and I am satisfied that termination of the Agreement would not be contrary to the public interest.

[10] As to the views of the employees Mr Shaw’s statutory declaration, further explained at the hearing, says that the employees had an opportunity at a secret ballot in May 2019 to advise whether or not they supported termination of the Agreement and of the 59 employees who did vote 30 voted in support of the Agreement no longer applying. Other than this evidence it is known that all the employees have had an opportunity to express their view to the Commission regarding this application, but none have done so.

[11] There is no employee organisation covered by the Agreement.

[12] The Applicant’s view is that it wishes the Agreement to be terminated in order to standardise its employment conditions, reduce administration costs, promote the transfer of employees across the business and to encourage a single workplace culture. The Agreement has long since expired and is outdated

[13] As to the circumstances of the employees and the likely effect of terminating the Agreement on them the Applicant, as stated by Mr Shaw in his statutory declaration, will honour and provide for better remuneration conditions than those provided for in the Agreement. The employees covered by the Agreement are currently receiving substantial remuneration levels above that provided in the Agreement and will continue to receive these and these will be subject to yearly remuneration reviews. The particular benefits the employees currently receive will continue as detailed by Mr Shaw in his statutory declaration. If the Agreement is terminated the employees will be entitled to and will receive penalties as per the applicable Modern Awards which are greater than those provided for in the Agreement.

[14] The circumstances of the Applicant if the Agreement is terminated is that it will be able to standardise its employment conditions, reduce administration costs, promote the transfer of employees across the business and encourage a single workplace culture.

[15] Considering all of the above, I am satisfied that in this case it is appropriate to terminate this Agreement. I will now issue an order terminating the Agreement and that order will come into operation seven days from the date of this decision.

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