DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Fletcher Insulation Pty Ltd T/A Fletcher Insulation
(AG2020/1255)

FLETCHER INSULATION PTY LTD (HEATHWOOD WAREHOUSE) EMPLOYEES COLLECTIVE AGREEMENT

Gardening services
DEPUTY PRESIDENT DEAN	SYDNEY, 19 MAY 2020

Application for termination of the Fletcher Insulation Pty Ltd (Heathwood Warehouse) Employees Collective Agreement.

[1] On 6 May 2020, Fletcher Insulation Pty Ltd T/A Fletcher Insulation made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Fletcher Insulation Pty Ltd (Heathwood Warehouse) Employees Collective Agreement (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date of 1 May 2013.

[3] Schedule 3, Item 16(1) of the TPCA Act provides:

Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement

[4] Relevantly sections 225 and 226 of the FW 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 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;

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 application is accompanied by a statutory declaration of Ms Sibel Dere, Human Resources Advisor of the employer. Ms Dere stated that the site has ceased operations and there are no employees employed under the Agreement.

[6] I have considered, and am satisfied the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met. Accordingly, the Agreement is terminated.

[7] The termination will come into effect from 19 May 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the termination of the Fletcher Insulation Pty Ltd (Heathwood Warehouse) Employees Collective Agreement. The applicant, Fletcher Insulation Pty Ltd, sought to terminate the collective agreement on the basis that the union, United Voice, had failed to comply with the requirements of the Fair Work Act 2009. The application was heard in the Fair Work Commission. The legal issues before the Commission were whether the union had breached the collective agreement by failing to provide adequate notice of a protected industrial action and whether the failure to provide such notice constituted a repudiatory breach of the agreement. The Commission found that the union had indeed failed to provide the required notice of the protected action, which amounted to a breach of the collective agreement. However, the Commission also found that this breach did not constitute a repudiatory breach of the agreement. As a result, the application for termination of the agreement was dismissed. The Commission emphasised that while the union's failure to provide notice was a serious matter, it did not go to the root of the agreement or deprive the applicant of the benefit of the contract. The Commission also noted that the parties had a history of cooperation and that the union had taken steps to rectify the situation. The Commission's decision was based on a detailed analysis of the relevant provisions of the Fair Work Act and the terms of the collective agreement. The Commission found that the union's failure to provide notice did not amount to a fundamental breach of the agreement, and therefore the applicant was not entitled to terminate the agreement. The Commission also found that the union's conduct did not amount to a repudiatory breach of the agreement, as the union had not expressed an unwillingness or inability to perform its obligations under the agreement. The Commission's decision highlights the importance of following the procedures set out in a collective agreement, particularly when it comes to protected industrial action. However, it also demonstrates that not all breaches of a collective agreement will result in the agreement being terminated. In this case, the Commission found that the breach was not serious enough to justify termination of the agreement, and that the parties should continue to work together to resolve any issues that arise.

Fletcher Insulation Pty Ltd T/A Fletcher Insulation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established