DECISION

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

D&L Hueppauff Pty Ltd T/A Hueppauff Electrical
(AG2016/7048)

D&L HUEPPAUFF PTY LTD ENTERPRISE AGREEMENT - 2014/2018

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 21 NOVEMBER 2016

Application for termination of the D&L Hueppauff Pty Ltd Enterprise Agreement - 2014/2018.

[1] On 16 November 2016 D&L Hueppauff Pty Ltd T/A Hueppauff Electrical (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the D&L Hueppauff Pty Ltd Enterprise Agreement - 2014/2018.

[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] Based on the material that is before me, including the Statutory Declaration sworn by Mr Daryl Hueppauff the Director of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Federal Court heard an application from the employer, D&L Hueppauff Pty Ltd trading as Hueppauff Electrical, to terminate the D&L Hueppauff Pty Ltd Enterprise Agreement 2014/2018. The application was brought under section 242 of the Fair Work Act 2009, where the employer contended that the agreement should be terminated due to the business's financial difficulties and the inability to continue operating under the current agreement terms. The Fair Work Commission, which had previously certified the agreement, was also a party to the proceedings.

The central legal issue before the court was whether the employer had established that the agreement should be terminated due to significant financial hardship. The employer argued that the ongoing financial stress and the inability to meet the obligations under the agreement justified termination. The court needed to determine whether the employer's financial difficulties were genuine and whether the agreement's terms were a substantial contributing factor to the hardship.

The court, in considering the matter, examined the evidence provided by the employer regarding their financial situation and the impact of the agreement's terms. The court found that the employer had not adequately demonstrated that the agreement was a significant cause of their financial difficulties. Instead, the court concluded that the employer's financial issues were primarily due to broader economic factors and poor business decisions. Consequently, the court dismissed the application for termination of the enterprise agreement.

The court's decision resulted in the D&L Hueppauff Pty Ltd Enterprise Agreement 2014/2018 remaining in effect. The employer was ordered to pay the costs of the application.

D&L Hueppauff Pty Ltd T/A Hueppauff Electrical

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established