Essential Mechanical Electrical Solutions Pty Ltd

[2019] FWCA 246

[2019] FWCA 246

FAIR WORK COMMISSION

DECISION

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

Essential Mechanical Electrical Solutions Pty Ltd
(AG2018/7221)

EMES ENTERPRISE AGREEMENT 2018

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 24 JANUARY 2019

Application for termination of the EMES Enterprise Agreement 2018

[1] On 20 December 2018 Essential Mechanical Electrical Solutions Pty Ltd (EMES) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the EMES Enterprise Agreement 2018 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“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.”

[3] The application was supported by a Form F24A statutory declaration made by Mr David Baker, Director of EMES, which declared, amongst other things, that the 10 employees covered by the Agreement were notified of the time and place of the vote and that of the 10 votes cast, 10 employees approved the termination of the Agreement.

[4] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. There are no employee organisations covered by the Agreement. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] To ensure the employees remain covered by an enterprise agreement, the termination will take effect on 31 January 2019. This is the date a new agreement entitled Essential Mechanical Electrical Solutions Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2018 - 2019 will become operative pursuant to my decision in [2019] FWCA 247.

COMMISSIONER

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