Electric Solutions Pty Ltd
[2022] FWCA 3326
•26 SEPTEMBER 2022
| [2022] FWCA 3326 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Electric Solutions Pty Ltd
(AG2022/3740)
Electric Solutions Pty Ltd Enterprise Agreement 2012
| Electrical contracting industry | |
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 26 SEPTEMBER 2022 |
Application for termination of the Electric Solutions Pty Ltd Enterprise Agreement 2012 after its nominal expiry date
On 6 September 2022 Electric Solutions Pty Ltd (Electric Solutions or the applicant employer) filed an application (Form F24B) pursuant to s 225 of the Fair Work Act 2009 (Cth) (FW Act) to terminate the Electric Solutions Pty Ltd Enterprise Agreement 2012 (the Agreement).
In support of the application, an officer of the applicant employer Ms Nina Colarusso lodged a declaration (Form F24C) dated 6 September 2022 stating that the effect of terminating the Agreement is that employees covered the Electrical, Electronic and Communications Contracting Award 2020 (Electrical Award) would have improved terms and conditions under the Electrical Award and the National Employment Standards (NES) underpinned by an employment contract.
I issued Directions concerning the application on 8 September 2022. These Directions required Electric Solutions to make the Directions and Forms F24B and F24C available to employees with an interest in the Directions, such as by electronic means or on a relevant noticeboard accessible to all employees. Electric Solutions was directed to provide confirmation by way of a statutory declaration that this had occurred, or that there were no employees with an interest in the Directions.
The Directions also required affected employees, in the event that an employee sought to oppose the application or otherwise be heard on it, to notify the Commission and Electric Solutions by close of business on Thursday 22 September 2022.
No correspondence was received from anyone purporting to be an affected employee or representing an affected employee.
On 16 September 2022, Ms Colarusso, on behalf of the applicant employer, filed a statutory declaration stating, inter alia, that it had:
“made available to all employees with an interest in this Direction all forms pertaining to this termination. The forms supplied by electronic means on 13th September 2022 to the employees include this Direction, Forms F24B and F24C”.
I heard the matter by telephone on 26 September 2022. Ms Colarusso represented the applicant employer. No employee interests appeared. On the Commission’s own motion, I took oral evidence from Ms Colarusso on her declarations and on further material submitted by the applicant employer on 20 September 2022.
Ms Colarusso’s evidence was that fourteen persons are currently employed under the Agreement. She advised that a meeting with affected employees had been held on 3 June 2022 at which time the employer’s proposal had been communicated,[1] and a comparison of changes to terms and conditions circulated.[2] The employer then made two changes to its proposal in response employee feedback (increasing the meal allowance it intended to pay and correcting an error in the comparison document concerning redundancy pay). The employer circulated revised employment terms,[3] which were subsequently agreed by affected employees. Those revised terms, where providing for more favourable conditions to employees, have been applied in practice since 5 September 2022.
Consideration
Electric Solutions is entitled to apply for the termination of the Agreement pursuant to s 225 of the FW Act.
Section 226 of the FW 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.”
The Agreement is a single enterprise agreement. It was approved on 18 July 2012 and commenced from 25 July 2012. Its nominal expiry date was 25 July 2016.[4] It is now well past its nominal expiry date.
Having regard to the requirements of s 226 and based on the evidence and submissions before me, including the declarations of Ms Colarusso of 6 September 2022 and 16 September 2022, and her further evidence of 26 September 2022, I am satisfied that:
· employees have been given an opportunity to be heard on the application;
· no employee interests have appeared in opposition to the application;
· it is not contrary to the public interest to terminate the Agreement; and
· it is appropriate to terminate the Agreement taking into account all of the circumstances.
It is not contrary to the public interest to terminate the Agreement because the Agreement is now over six years beyond its nominal expiry, has not been updated since first made, does not reflect contemporary industrial standards, is not a user-friendly point of reference for determining industrial rights and obligations and, if terminated, would be substituted by the operation of the contemporary Electrical Award and the NES together with each employee’s revised contract of employment.
On the question of whether it is appropriate to terminate the Agreement, I consider that there appears to be no material adverse effect on employees should the Agreement be terminated. I am satisfied that in relevant respects the Electrical Award and NES provide contemporary and overall more beneficial conditions to employees, particularly with respect to (but not limited to) the working of overtime.
This conclusion follows from the fact that the Agreement was made ten years ago, has not been re-negotiated since, and is in relevant parts an outdated instrument. There is no evidence that collective bargaining for a replacement agreement has occurred or been sought since the Agreement was made. This termination application is neither tactical on the employer’s part, nor opposed by employee interests. The employer has, since the nominal expiry date and as a matter of practice, increased wages at least in line with movements in the Electrical Award and the NES notwithstanding the Agreement remaining unchanged. Impacts on the employer from termination are thus likely to be minimal.
I consider it appropriate to provide a short period before termination of the Agreement comes into effect, to enable the employer to advise affected employees of this decision. The date of operation will be prior to the next pay cycle.
In accordance with s 227 of the FW Act, the termination will take effect from 11:59pm on 30 September 2022. An Order[5] to this effect is issued in conjunction with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms N Colarusso, of and on behalf of Electric Solutions Pty Ltd
Hearing details:
2022
Adelaide (by telephone)
26 September
[1] A1
[2] A2
[3] A3 and A4
[4] [2012] FWAA 6096
[5] PR746182
Printed by authority of the Commonwealth Government Printer
<AE895470 PR746181>
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