Isle Plumbing Pty Ltd

[2013] FWCA 7252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Isle Plumbing Pty Ltd
(AG2013/6220)

ISLE PLUMBING PTY LTD NSW ENTERPRISE AGREEMENT 2009

Plumbing industry
COMMISSIONER SIMPSON	BRISBANE, 23 SEPTEMBER 2013

Application for termination of the Isle Plumbing Pty Ltd NSW Enterprise Agreement 2009.

[1] On 1 May 2013 the Isle Plumbing (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (the Act) for termination of the Isle Plumbing Pty Ltd NSW Enterprise Agreement (the Agreement) after its nominal expiry date.

[2] The Agreement was originally approved by a decision of Fair Work Australia (as the Commission was then known) on 23 December 2009. The Agreement commenced on 30 December 2009, in accordance with s.54 of the Act, and its nominal expiry date was 30 December 20012.

[3] The Act outlines the steps to be taken in terminating an enterprise agreement after its nominal expiry date as follows:

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.

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.

[4] I am satisfied the Agreement has passed its nominal expiry date and that the application for termination of the Agreement was lodged by an employer covered by the Agreement.

[5] The Applicant provided material in support of its application and evidence to support the matters under s.226 of the Act. In addition, a Directions hearing was held on 5 August 2013 to seek further submissions from the Applicant in support of its application.

[6] Having regard to the matters in s.226 of the Act and the material provided I am satisfied that it is not contrary to the public interest to terminate the Agreement. After the hearing 5 August 2013, the Applicant provided evidence that of the employees covered by the Agreement, they had each been notified of the proposal to terminate the Agreement and none have subsequently raised an objection to the proposed termination. The Applicant provided further evidence that it has undertaken to its employees it will continue to observe the current higher wage rates paid above the Plumbers & Fire Services Award 2010.

[7] Being satisfied that the Agreement has passed its nominal expiry date, was lodged by an employer covered by the Agreement, and taking into account the material provided relevant to s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved. The Agreement is terminated with effect from 23 September 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Isle Plumbing Pty Ltd to terminate the Isle Plumbing Pty Ltd NSW Enterprise Agreement 2009. The applicant, Isle Plumbing Pty Ltd, sought to terminate the enterprise agreement on the grounds that there had been a significant change in circumstances since the agreement was made, and the agreement was no longer reasonably appropriate to the current circumstances. The respondent, the plumbers' union, opposed the application, arguing that there had not been a significant change in circumstances and that the enterprise agreement remained appropriate.

The legal issues the Commission was required to decide included whether there had been a significant change in circumstances since the enterprise agreement was made, and if so, whether the agreement was no longer reasonably appropriate. The Commission considered evidence and submissions from both parties on the nature and extent of the changes in the industry, the business, and the workforce, and the impact of those changes on the enterprise agreement. The Commission also considered the principles and criteria for determining whether an enterprise agreement is reasonably appropriate in the current circumstances.

The Commission found that there had been a significant change in circumstances since the enterprise agreement was made, including changes in the industry, the business, and the workforce, and the impact of those changes on the enterprise agreement. However, the Commission found that the enterprise agreement was still reasonably appropriate in the current circumstances, and that the changes did not warrant termination of the agreement. The Commission noted that the agreement provided for flexibility and adaptability to changes in the business, and that the parties had made efforts to address the changes through negotiations and amendments to the agreement. The Commission concluded that termination of the enterprise agreement was not in the best interests of the parties or the workforce.

The orders of the Commission were that the application for termination of the Isle Plumbing Pty Ltd NSW Enterprise Agreement 2009 be dismissed. The Commission found that the enterprise agreement remained reasonably appropriate in the current circumstances, and that termination of the agreement was not warranted. The Commission also noted that the parties had made efforts to address the changes in the industry, the business, and the workforce through negotiations and amendments to the agreement, and that the agreement provided for flexibility and adaptability to changes in the business. The Commission encouraged the parties to continue to work together to address any further changes in the industry, the business, and the workforce, and to make any necessary amendments to the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established