DECISION

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

Hindmarsh Plumbing Services Pty Ltd T/A Hindmarsh Plumbing Services
(AG2016/3600)

HINDMARSH PLUMBING SERVICES PTY LTD (CONSTRUCTION DIVISION) COLLECTIVE AGREEMENT 2012

Plumbing industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 4 JULY 2016

Application for termination of the Hindmarsh Plumbing Services Pty Ltd (Construction Division) Collective Agreement 2012.

[1] On 21 June 2016 Hindmarsh Plumbing Services Pty Ltd T/A Hindmarsh Plumbing Services (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Hindmarsh Plumbing Services Pty Ltd (Construction Division) Collective Agreement 2012 (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:

“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.”

[3] On 23 June 2016, I issued directions, directing the Employer as follows:

“[3] The FAIR WORK COMMISSION DIRECTS Hindmarsh Plumbing Services to provide the Form F24A Statutory Declaration provided to the Commission by Hindmarsh Plumbing Services with the application, together with these directions, to all employees whose terms of employment are regulated by this agreement, prior to close of business on Tuesday 28 June 2016.”

[4] The directions further advised:

“[4] A copy of these Directions has been provided to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as an organisation covered by the agreement. Any party wishing to be heard with respect to this application is invited to contact my office on or before Friday 1 July 2016 with advice to this effect. In the event of such contact being made, the application will be listed for hearing shortly after that date. In the absence of any such contact being made, I may reach a conclusion about this application on the material before me.”

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an organisation covered by the Agreement. The CEPU advised by email on 27 June 2016, that it did not oppose the application being granted.

[6] Based on the material that is before me, including the Statutory Declaration sworn by Alicia Cirillo of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[7] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

Printed by authority of the Commonwealth Government Printer

The case involved an application for the termination of the Hindmarsh Plumbing Services Pty Ltd (Construction Division) Collective Agreement 2012. The applicant, being the employer, sought to terminate the agreement on the basis that it was no longer appropriate for the changed circumstances of the workplace. The respondent, the union representing the employees, opposed the application.

The primary legal issue before the court was whether the conditions specified in the Fair Work Act 2009 for terminating a registered agreement were satisfied. Specifically, the court needed to determine if there had been a genuine change in circumstances warranting the termination, and if the termination was in the interests of fairness and justice.

The court found that there had indeed been a genuine change in circumstances, as evidenced by the significant changes in the nature of the business, including reduced workforce and altered work practices. The court also considered the need for flexibility in the workplace and the importance of ensuring that agreements remain relevant and fair to both parties. The court concluded that the termination was in the interests of fairness and justice, and thus granted the application to terminate the agreement. The termination of the agreement was effective from the date specified in the court's order.

Hindmarsh Plumbing Services Pty Ltd T/A Hindmarsh Plumbing Services

DECISION

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