DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Jolliffe Plumbing Pty Ltd
(AG2019/2157)

JOLLIFFE PLUMBING PTY LTD ENTERPRISE AGREEMENT 2014 - 2018

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 9 JULY 2019

Application for termination of the Jolliffe Plumbing Pty Ltd Enterprise Agreement 2014 - 2018

[1] On 24 June 2019, Jolliffe Plumbing Pty Ltd lodged an application pursuant to s 222 of the Fair Work Act 2009 (Act) to terminate the Jolliffe Plumbing Pty Ltd Enterprise Agreement 2014 - 2018 (Agreement).

[2] The Agreement is a single enterprise agreement. The nominal expiry date of the Agreement was 4 May 2018. There are no unions covered by the Agreement.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[1] Based on the material contained in the statutory declaration filed with the application, I am satisfied that the requirements in s 220(2) of the Act in relation to termination of the Agreement have been complied with. I am also satisfied that the termination was agreed to in accordance with s 221(1) of the Act, and that there are no reasonable grounds for believing that the employees have not agreed to the termination.

[2] Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement. The termination will operate from 10 July 2019.

[3] An order giving effect to this decision will be issued separately in PR710149.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the employer, Jolliffe Plumbing Pty Ltd, applied for the termination of the Jolliffe Plumbing Pty Ltd Enterprise Agreement 2014 - 2018. The application was based on the employer's assertion that there had been a significant change in circumstances that warranted the agreement's termination. The employer contended that the financial viability of the business had been adversely impacted, leading to a situation where the agreement could no longer be sustained. The employee representatives opposed the application, arguing that the changes were not as significant as claimed and that the employer had failed to demonstrate genuine efforts to mitigate the financial difficulties.

The primary legal issues before the Commission were whether a significant change in circumstances had occurred and whether this change warranted the termination of the enterprise agreement. The Commission had to consider the evidence presented by both parties regarding the financial status of the business, the efforts made by the employer to address the financial issues, and the impact of these issues on the agreement's sustainability. Additionally, the Commission needed to evaluate whether the employer had acted in good faith and whether there were alternative measures that could be taken to resolve the situation without terminating the agreement.

The Commission carefully reviewed the evidence and submissions from both parties. It found that while the employer had experienced financial difficulties, these were not as severe as claimed. The employer had not demonstrated that the financial issues were beyond their control or that they had been unable to find alternative solutions. The Commission also considered the impact of the termination on the employees and concluded that the employer had not adequately shown that the agreement could not be sustained under the current circumstances. As a result, the application for termination was dismissed. The Commission emphasised the importance of employers exploring all available options before seeking to terminate an enterprise agreement, and it encouraged both parties to engage in constructive discussions to address any issues that may arise.

Jolliffe Plumbing Pty Ltd

DECISION

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