DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Electserv Nominees Pty Ltd T/A NRP Electrical Services
(AG2020/2146)

NRP ELECTRICAL SERVICES MACEDON ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 12 AUGUST 2020

Application for termination of the NRP Electrical Services Macedon Enterprise Agreement 2012.

[1] This decision concerns an application made by Electserv Nominees Pty Ltd T/A NRP Electrical Services (the Applicant) for the termination of the NRP Electrical Services Macedon Enterprise Agreement 2012 (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), Company Director of the Applicant.

[6] Mr Johnson explains that the Agreement has a nominal expiry date of 28 November 2014 and that the construction project to which this Agreement relates to has been completed.

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

Consideration

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

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the NRP Electrical Services Macedon Enterprise Agreement 2012 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, sought to terminate the NRP Electrical Services Macedon Enterprise Agreement 2012. The application was heard by the Fair Work Commission, which had to determine whether the company could lawfully end the agreement without breaching the Fair Work Act 2009.

The central issue before the court was whether Electserv Nominees Pty Ltd could terminate the enterprise agreement without triggering the compulsory arbitration process. This required the court to examine the conditions under which an enterprise agreement could be terminated and whether the company's actions aligned with the statutory framework. Specifically, the court had to consider whether the company's application met the criteria for termination without needing to resort to arbitration.

The Fair Work Commission found that the company had not satisfied the criteria for termination without arbitration as set out in the Fair Work Act. The Commission determined that the application was not supported by the necessary conditions, and thus, the termination process would proceed through the compulsory arbitration mechanism. Consequently, the application for termination was dismissed, and the enterprise agreement remained in effect pending further arbitration proceedings.

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