Fine Tune Communications; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2015] FWCA 6629

[2015] FWCA 6629

The attached document replaces the document previously issued with the above code on 13 October 2015.

Paragraph [8] added to include the date of operation.

Rachel Kimber

Associate to Deputy President Gostencnik

Dated 20 October 2015

[2015] FWCA 6629

FAIR WORK COMMISSION

DECISION

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

Fine Tune Communications; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2015/4490)

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 13 OCTOBER 2015

Application for termination of the Fine Tune Communications ETU Enterprise Agreement 2003-2005.

[1] On 1 September 2015 Fine Tune Communications, Communications, Electrical, Electronic Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Company) applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Fine Tune Communications ETU Enterprise Agreement 2003-2005 (the Agreement). The Agreement covers the Company and employees of the Company specified in clause 5 of the Agreement. The Agreement has passed its nominal expiry date.

[2] On 29 September 2015 the Company was advised by my Associate that the application would be better made under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). The Company advised on 1 October 2015 that is would proceed with the current application as varied. Section 586 of the Act provides the Commission with a wide discretion to amend an application. This discretion must be exercised having regards to the objects of the Act generally and the relevant Part of the Act. On the basis of s.586 of the Act, I have allowed the application to proceed.

[3] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act) apply. The effect of Item 15 and 16 of Schedule 3 of the FW (TPCA) Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to a collective agreement-based transitional instrument.

[4] Section 225 of the Act provides:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

[5] Section 226 of the 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.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 24 September 2015, the CEPU advised that it did not wish to make any submissions or to be heard further in relation to the termination of the Agreement.

[7] Based on the material contained in the Company’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the Company’s declaration, the Agreement does not cover nor apply to any employee of the Company. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[8] This termination will operate from 14 October 2015.

DEPUTY PRESIDENT

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