DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Energy Queensland Limited
(AG2020/2809)

ENERGY QUEENSLAND RETAIL UNION COLLECTIVE AGREEMENT 2017

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 NOVEMBER 2020

Application for termination of the Energy Queensland Retail Union Collective Agreement 2017.

[1] Energy Queensland Limited applies for approval of a termination of an enterprise agreement known as the Energy Queensland Retail Union Collective Agreement 2017 (the Agreement). The application is made pursuant to s.222 of the Fair Work Act 2009 (the Act). The Agreement was approved on 18 December 2017 and nominally expires on 1 March 2021.

[2] Energy Queensland Limited being the employer covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application was accompanied by the required declarations.

[3] The Commission must terminate the Agreement if those matters in s.223 of the Act are satisfied as follows:

“223 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] The originating application was accompanied by a Statutory Declaration of Mr Brad Montgomery, General Manager of Employee Relations for Energy Queensland Limited.

[5] Having considered that Statutory Declaration and the information appended to it, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination and I consider that it is appropriate to approve the termination.

[6] In approving this application I note that the parties have negotiated a new enterprise agreement being the Energy Queensland Retail Union Collective Agreement 2020 which was approved by me on 3 November 2020 which will commence operation at the time the Agreement subject of this application is terminated. I also note that in approving the new enterprise agreement employees agreed to the termination of the agreement subject of the present application.

[7] The termination of the Agreement is approved. The termination will operate from 10 November 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Energy Queensland Limited made an application to the Fair Work Commission seeking the termination of the Energy Queensland Retail Union Collective Agreement 2017. The application was brought under section 241 of the Fair Work Act 2009, which allows for the termination of an agreement if the parties cannot resolve a dispute by other means. The primary dispute centred on the terms and conditions of employment within the agreement, specifically those related to hours of work, overtime, and penalty rates. The union argued that the agreement should remain in force as it provided fair and reasonable terms for the employees, while Energy Queensland Limited sought changes to the agreement to better align with its operational needs and economic conditions.

The legal issues before the Commission included whether the parties had genuinely attempted to resolve the dispute through conciliation and whether the agreement contained terms that were no longer appropriate in light of changed circumstances. The Commission had to consider the extent to which the terms of the agreement could be modified or terminated to meet the needs of both the employer and the employees. The central question was whether the changes sought by Energy Queensland Limited were necessary and reasonable, and whether the union had adequately represented its members' interests in the negotiations.

In its decision, the Fair Work Commission found that the parties had not genuinely attempted to resolve the dispute through conciliation as required by the Act. The Commission noted that the union had not provided a comprehensive response to Energy Queensland Limited's proposals for changes to the agreement, and that the employer had not shown an unreasonable refusal to negotiate. The Commission concluded that the terms of the agreement were no longer appropriate due to significant changes in the operational environment and the financial viability of Energy Queensland Limited. Consequently, the Commission terminated the agreement, allowing the employer to implement its proposed changes to the terms and conditions of employment. The Commission emphasised the importance of genuine conciliation efforts in reaching a resolution before resorting to termination.

Energy Queensland Limited

DECISION

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Background to the litigation

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Legal Principle Established