Dickson & Funke Pty Ltd

[2021] FWCA 7274

[2021] FWCA 7274

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Dickson & Funke Pty Ltd
(AG2021/9065)

DICKSON & FUNKE PTY LTD – ETU ENTERPRISE AGREEMENT 2003-2005

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 23 DECEMBER 2021

Application to terminate the Dickson & Funke Pty Ltd – ETU Enterprise Agreement 2003-2005

[1] This decision concerns an application made by Dickson and Funke Pty Ltd (company) under s 225 of the Fair Work Act 2009 (FW Act) to terminate the Dickson and Funke Pty Ltd – ETU Enterprise Agreement 2003-2005 (Agreement). The Agreement is an instrument that was made under the Workplace Relations Act 1996 (WR Act) and passed its nominal expiry date on 31 October 2005. It is a ‘collective agreement-based transitional instrument’ for the purposes of Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (TPCA Act). The effect of this item is that the termination provisions found in Subdivision D of Division 7 of Part 2-4 of the FW Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. In short, s 225 of the FW Act applies to an application to terminate an old WR Act Agreement.

[2] Strictly speaking, the application should have been made under the TPCA Act itself through a form F28. However, as the intention is plainly to terminate the Agreement, I grant relief from the rules and treat the application as though it were an F28.

[3] Section 225 of the Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[4] Section 226 of the Act provides:

“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] Mr Peter Funke, the company’s business manager, provided a declaration in support of the application, in which he stated that the company no longer works on large sites and its only employees are Mr Funke, his wife and his son. Mr Funke said that the company is now directed at the cottage industry, but that it cannot compete effectively under the employment structure in the Agreement, and that it wishes simply to abide by industry rates, by which I take him to mean the relevant award. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is covered by the Agreement.  On 21 December 2021, the CEPU advised my chambers that it did not oppose the termination of the Agreement. I have decided to determine the application on the papers.

[6] Based on the application and Mr Funke’s declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances, including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement, and I do so. The termination will operate from 30 December 2021.

DEPUTY PRESIDENT

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