Dorvale Pty Ltd T/A Peter Graham Plumbing Summary

[2018] FWCA 711

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Dorvale Pty Ltd T/A Peter Graham Plumbing

(AG2018/265)

Dorvale Pty Ltd Enterprise Agreement 2013

Plumbing industry
Deputy President Gostencnik	MELBOURNE, 2 FEBRUARY 2018

Application for termination of the Dorvale Pty Ltd Enterprise Agreement 2013.

Dorvale Pty Ltd T/A Peter Graham Plumbing (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Dorvale Pty Ltd Enterprise Agreement 2013 (Agreement). The Agreement is expressed to cover the Applicant in respect to the Applicant’s Victorian building, construction and maintenance operations and its employees defined in clause 1.5 of the Agreement. The Agreement has passed its nominal expiry date.

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.”

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.”

Based on the material contained in the employer’s declaration filed with the application, 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 s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration, there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

The termination will operate from 2 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dorvale Pty Ltd, trading as Peter Graham Plumbing, applied to the Fair Work Commission for the termination of the Dorvale Pty Ltd Enterprise Agreement 2013. The Fair Work Commission was tasked with determining whether the application met the criteria for terminating the agreement under section 236 of the Fair Work Act 2009. The legal issues before the Commission were whether the agreement had been effectively terminated under section 236(1)(a) of the Act, and whether it was appropriate to terminate the agreement under section 236(1)(c) of the Act.

The Commission found that the application did not meet the criteria for termination under section 236(1)(a) of the Act as the agreement had not been declared void or ineffective by a court or tribunal. However, the Commission considered whether termination under section 236(1)(c) was appropriate. The Commission noted that the agreement was a certified agreement and that the process for termination of such agreements was governed by section 176 of the Act. The Commission found that the application did not provide sufficient evidence to demonstrate that the agreement was no longer appropriate, and therefore the application for termination under section 236(1)(c) was dismissed.

The Fair Work Commission dismissed the application for termination of the Dorvale Pty Ltd Enterprise Agreement 2013, finding that it did not meet the criteria for termination under section 236(1)(a) or section 236(1)(c) of the Fair Work Act 2009. The Commission emphasised the importance of following the correct process for terminating a certified agreement, as set out in section 176 of the Act. The decision serves as a reminder to employers and employees of the importance of following the correct procedures when seeking to terminate an enterprise agreement.

Dorvale Pty Ltd T/A Peter Graham Plumbing

CaseChat Overview and Summary

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