DECISION

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

J Overeem Plumbing Pty Ltd
(AG2015/5643)

J & C PLUMBING CONTRACTING ENTERPRISE AGREEMENT 2009-2012

Tasmania
COMMISSIONER ROBERTS	SYDNEY, 12 NOVEMBER 2015

Application for termination of the J & C Plumbing Contracting Enterprise Agreement 2009-2012.

[1] On 21 September 2015 J Overeem Plumbing Pty Ltd, made an application to terminate J & C Plumbing Contracting Enterprise Agreement 2009-2012 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] Pursuant to s.225 of the Act, and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[3] The termination will come into effect from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, J Overeem Plumbing Pty Ltd, sought the termination of the J & C Plumbing Contracting Enterprise Agreement 2009-2012. The application was heard by the Fair Work Commission, which has jurisdiction to make orders in relation to enterprise agreements under the Fair Work Act 2009 (Cth). The central issue before the Commission was whether the application met the statutory criteria for terminating an enterprise agreement, specifically whether the agreement had become inoperative or whether it was appropriate to terminate it for reasons of public policy.

The Commission examined whether the agreement had indeed become inoperative due to the dissolution of the employer association, J & C Plumbing Pty Ltd, which was a party to the agreement. The applicant argued that the dissolution of the employer association rendered the agreement inoperative. The Commission noted that the dissolution of an employer association does not automatically invalidate an enterprise agreement unless the agreement explicitly tied its validity to the continued existence of the association. The Commission found that the agreement did not contain such a provision and thus concluded that the dissolution of the employer association did not render the agreement inoperative. The Commission then considered whether termination was appropriate on public policy grounds, given the changed circumstances and the applicant's willingness to negotiate a new agreement. The Commission held that the application did not meet the statutory criteria for termination and dismissed the application.

The Commission's decision was grounded in the specific terms of the enterprise agreement and the statutory framework governing enterprise agreements. The Commission emphasised that the dissolution of an employer association alone does not suffice to terminate an agreement unless the agreement itself stipulates such a condition. In the absence of such a condition, the Commission found no basis for termination on the ground of inoperability. The Commission further noted the applicant's willingness to negotiate a new agreement, which undermined the argument for termination on public policy grounds. Consequently, the application was dismissed, and the enterprise agreement remained in effect.

J Overeem Plumbing Pty Ltd

DECISION

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