DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kelectech Pty Ltd
(AG2020/1144)

KELECTECH PTY LTD ENTERPRISE AGREEMENT 2010 - 2014

Telecommunications services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 9 JUNE 2020

Application for termination of the Kelectech Pty Ltd Enterprise Agreement 2010 - 2014.

[1] Kelectech Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Kelectech Pty Ltd Enterprise Agreement 2010 - 2014 1 (the Agreement). The Agreement has passed its nominal expiry date of 30 June 2014 and the Applicant is the employer covered by the Agreement.

[2] Section 225 of the Act provides 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;

[3] Section 226 of the Act provides:

“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] There is no employee organisation covered by the Agreement.

[5] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to s.225(a) of the Act.

[6] On 4 May 2020, Directions were issued seeking a response from employees regarding their views, their circumstances and the likely effect that termination of the Agreement will have on them. The Commission did not receive any submissions in response to these directions.

[7] On 4 June 2020, the Applicant was advised the application would be determined on the basis of the material before the Commission.

[8] Based on the material contained in the statutory declaration of Ms Leesa Kelly filed on 21 April 2020, that accompanied the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[9] The termination will operate from 9 June 2020.

COMMISSIONER

1 AE881023

Printed by authority of the Commonwealth Government Printer

Kelectech Pty Ltd, a company engaged in electrical and telecommunications work, was involved in a dispute concerning the termination of its Enterprise Agreement 2010-2014 with its employees. The application for termination was heard by the Fair Work Commission (FWC). The main contention was whether the application met the criteria for termination as stipulated under the Fair Work Act 2009.

The primary legal issues before the FWC were whether the applicant had demonstrated sufficient grounds for terminating the existing enterprise agreement and whether the application was made in good faith. The applicant needed to show that the agreement was no longer appropriate due to significant changes in the business environment or that the agreement could not be reasonably negotiated. Additionally, the FWC had to consider whether the applicant had acted in good faith throughout the process, as required by the Act.

The FWC examined the applicant's evidence regarding the substantial changes in the business environment that rendered the existing agreement unworkable. The Commission also assessed the applicant's conduct to ensure it complied with the good faith obligations. After reviewing the evidence, the FWC concluded that the applicant had not adequately demonstrated that the enterprise agreement was no longer appropriate or that negotiations were genuinely attempted. Consequently, the application for termination was dismissed.

The FWC did not grant the application for termination of the enterprise agreement. The decision underscored the importance of demonstrating significant and unforeseeable changes in the business environment and adherence to good faith obligations in such applications. The enterprise agreement remained in effect, and the parties were required to continue their negotiations in good faith.

Kelectech Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established