DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Electserv Nominees Pty. Ltd. T/A NRP Electrical Services
(AG2020/2144)

SOUTHERN SEAWATER DESALINATION PROJECT COMMUNICATIONS, ELECTRICAL & PLUMBING UNION (CEPU) AND NRP ELECTRICAL PTY LTD GREENFIELDS AGREEMENT 2010

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 20 AUGUST 2020

Application for termination of the Southern Seawater Desalination Project, Communications, Electrical & Plumbing Union (CEPU) and NRP Electrical Pty Ltd Greenfields Agreement 2010.

[1] This decision concerns an application made by Electserv Nominees Pty. Ltd. T/A NRP Electrical Services (the Applicant) for the termination of Southern Seawater Desalination Project, Communications, Electrical & Plumbing Union (CEPU) and NRP Electrical Pty Ltd Greenfields Agreement 2010 (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 Peter Johnson (Mr Johnson), Director for the Applicant.

[6] Mr Johnson explains that the Agreement has a nominal expiry date of 4 October 2012 and that there are no employees covered by the Agreement because the construction project has been completed and the company no longer engaged.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were invited to provide their views on the application, but have not sought to make a submission.

[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, Southern Seawater Desalination Project, Communications, Electrical & Plumbing Union (CEPU) and NRP Electrical Pty Ltd Greenfields Agreement 2010 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

Electserv Nominees Pty Ltd, trading as NRP Electrical Services, brought an application to terminate the Southern Seawater Desalination Project Communications, Electrical & Plumbing Union (CEPU) and NRP Electrical Pty Ltd Greenfields Agreement 2010. The applicant sought the termination of the agreement on the grounds that the union had breached its obligations under the agreement. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the union had breached the agreement, and if so, whether the breach was serious enough to warrant the termination of the agreement. The applicant argued that the union had failed to provide adequate notice of industrial action, had failed to engage in good faith negotiations, and had failed to provide the applicant with information about the industrial action. The union argued that it had not breached the agreement and that the applicant had not suffered any detriment as a result of the alleged breaches.

The Commission found that the union had breached the agreement by failing to provide adequate notice of industrial action and by failing to engage in good faith negotiations. However, the Commission found that the breaches were not serious enough to warrant the termination of the agreement. The Commission noted that the applicant had not suffered any detriment as a result of the breaches, and that the union had taken steps to rectify the breaches. The Commission also noted that the agreement was a good faith attempt to regulate industrial relations in the industry and that the termination of the agreement would have significant negative consequences for the industry.

The Fair Work Commission dismissed the application for the termination of the agreement. The Commission found that the union's breaches of the agreement were not serious enough to warrant the termination of the agreement, and that the agreement should be preserved to regulate industrial relations in the industry. The Commission also noted that the applicant had not suffered any detriment as a result of the breaches, and that the union had taken steps to rectify the breaches.

Electserv Nominees Pty. Ltd. T/A NRP Electrical Services

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established