Kingsgrove Enterprises Pty Ltd T/A Regal Refrigeration & Airconditioning Service

[2019] FWCA 2919

[2019] FWCA 2919

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Kingsgrove Enterprises Pty Ltd T/A Regal Refrigeration & Airconditioning Service
(AG2019/811)

REGAL REFRIGERATION & AIRCONDITIONING SERVICE AND CEPU COMMERCIAL REFRIGERATION SECTOR ENTERPRISE AGREEMENT 2003-2006

Plumbing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 1 MAY 2019

Application for termination of the Regal Refrigeration & Airconditioning Service and CEPU Commercial Refrigeration Sector Enterprise Agreement 2003 -2006.

[1] An application has been made by Kingsgrove Enterprises Pty Ltd T/A Regal Refrigeration & Airconditioning Service (Applicant) pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TCPA Act) to terminate the Regal Refrigeration & Airconditioning Service and CEPU Commercial Refrigeration Sector Enterprise Agreement 2003-2006 (Agreement). The nominal expiry date of the Agreement was 30 June 2006.

Legislation

[2] The relevant provision of the TCPA Act is as follows:

“Schedule 3…

…

16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[3] The relevant provisions of the Fair Work Act 2009 (Act) are 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

Standing

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

Public Interest

[5] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that there are currently no employees covered by the Agreement and that it does not intend to employ any employee under the Agreement.

[6] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to s.226(a) of the Act.

Views, Circumstances and Likely Effect of Termination

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an organisation which is covered by the Agreement. In correspondence to my chambers of 2 April 2019, the CEPU advised that it did not oppose the termination of the Agreement.

[8] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[9] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[10] An Order will be issued terminating the Agreement with effect from 1 May 2019.

COMMISSIONER

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