Marshall Power Australia Pty Ltd

[2016] FWCA 287

[2016] FWCA 287

FAIR WORK COMMISSION

DECISION

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

Marshall Power Australia Pty Ltd
(AG2015/7813)

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 JANUARY 2016

Application for termination of the Exide Australia Pty Ltd (Padstow) Enterprise Agreement 2012.

[1] On 22 December 2015 Marshall Power Australia Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Exide Australia Pty Ltd (Padstow) Enterprise Agreement 2012 (the Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date was 30 June 2014.

[3] The relevant provisions of the 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 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.’

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an organisation which is covered by the Agreement. Correspondence was received from the CEPU on 13 January 2016 advising that it did not oppose the termination of the Agreement.

[5] Based on the material contained in the Applicant’s declaration filed with 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 ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the Applicant’s declaration the Agreement does not cover nor apply to any employee of Marshall Power Australia Pty Ltd. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

DEPUTY PRESIDENT

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