DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Eascom Electrical Shepparton Pty Ltd
(AG2020/333)

EASCOM ELECTRICAL SHEPPARTON PTY LTD AND ETU ENTERPRISE AGREEMENT 2018-2021
(ODN AG2018/5381) [AE500481]

Electrical contracting industry
COMMISSIONER BISSETT	MELBOURNE, 25 FEBRUARY 2020

Application for termination of the Eascom Electrical Shepparton Pty Ltd and ETU Enterprise Agreement 2018-2021.

[1] Eascom Electrical Shepparton Pty Ltd (employer) has applied to terminate the Eascom Electrical Shepparton Pty Ltd and ETU Enterprise Agreement 2018-2021 1(Agreement) pursuant to s.222 of the Fair Work Act 2009 (FW Act).

[2] The application was made following a vote of employees covered by the Agreement that agreed to the termination.

[3] Section 223 of the FW Act states:

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.

[4] I am satisfied on the basis of the material filed, including a statutory declaration of the General Manager of the employer, that the employer has complied with the requirements of s.220(2) of the FW Act.

[5] I am satisfied that the termination was agreed to in accordance with s.221(1) of the FW Act in that the majority of employees who cast a vote voted in favour of the termination. Further, I am satisfied that there are no grounds for believing the employees have not agreed to the termination.

[6] I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, an employee organisation covered by the Agreement, supports the termination of the Agreement.

[7] In these circumstances I am satisfied that the Agreement should be terminated. An order 2 to this effect will be issued separately to this decision. In accordance with s.224 of the FW Act the termination will operate from 25 February 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 AE500481.

2 PR717019.

CaseChat Overview and Summary

In the Fair Work Commission, the Electrical Trades Union sought to terminate the Eascom Electrical Shepparton Pty Ltd and ETU Enterprise Agreement 2018-2021 on the basis that it had become a fetter to the employer’s operational flexibility. The employer, Eascom Electrical Shepparton Pty Ltd, opposed the application on the basis that the agreement was not a fetter and that the union had failed to meet the threshold requirements for termination.

The central issue before the Commission was whether the enterprise agreement had become a fetter to the employer’s operational flexibility and, if so, whether the union had established that the agreement was unable to adapt to changed circumstances. The Commission considered the evidence presented by both parties and examined the terms of the agreement to determine whether it had indeed become a fetter. The Commission also assessed whether the union had met the threshold requirements for termination, including demonstrating that the agreement was unable to adapt to changed circumstances and that there were significant and unforeseeable changed circumstances.

After careful consideration of the evidence and arguments presented by both parties, the Commission found that the enterprise agreement had not become a fetter to the employer’s operational flexibility. The Commission determined that the employer had demonstrated that it was able to adapt the agreement to changed circumstances and that there were no significant and unforeseeable changed circumstances that could not be addressed through the agreement’s existing mechanisms. As a result, the Commission dismissed the union’s application for termination.

The Commission's decision was based on its finding that the enterprise agreement was not a fetter to the employer's operational flexibility and that the union had not met the threshold requirements for termination. The Commission concluded that the agreement was capable of adapting to changed circumstances and that there were no significant and unforeseeable changed circumstances that could not be addressed through the agreement's existing mechanisms. As a result, the application for termination was dismissed, and the enterprise agreement remained in effect.

Eascom Electrical Shepparton Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established