Martin John T/A Gate Opening Systems Pty Ltd

[2021] FWCA 6201

[2021] FWCA 6201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Martin John T/A Gate Opening Systems Pty Ltd
(AG2021/6672)

ETU AND (GATE OPENING SYSTEMS PTY LTD) ENTERPRISE AGREEMENT 2004-2007

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 14 OCTOBER 2021

Application for termination of the ETU and (Gate Opening Systems Pty Ltd) Enterprise Agreement 2004-2007.

[1] Martin John T/A Gate Opening Systems Pty Ltd (Applicant) has made an application for the Fair Work Commission (Commission) to terminate the ETU and (Gate Opening Systems Pty Ltd) Enterprise Agreement 2004-2007 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The application for termination was made on 11 August 2021. The Agreement expired on 31 October 2007.

[2] The Form F24C – Statutory declaration (the declaration) lodged with the application confirms that the reason the Applicant seeks for the Agreement to be terminated is that although the Applicant took over the company in 2010, they only found out recently that the Agreement was still in place. Furthermore, the Applicant states the Agreement does not relate to the works performed by the company.

[3] Clause 1.1.3 of the Agreement covers ‘all current and future employees of the employer who are engaged in any classifications specified in the National Electrical, Electronic and Communications Contracting Industry Award 1998’.

[4] On 20 August 2021, my chambers wrote to the Applicant seeking further information about the work currently performed by employees covered by the Agreement and confirmation of their current pay and entitlements. The Applicant was also asked to confirm whether employees covered by the Agreement were aware of the application and to advise them that if they wished to raise any views regarding the application they were entitled to do so.

[5] On 27 August 2021, the Applicant wrote to my chambers confirming that 10 of the company’s employees are engaged pursuant to the Manufacturing and Associated Industries Award (Manufacturing Award), with the majority of these employees being engaged as welders and gate and fencing installers, as this is the primary business of the Applicant.

[6] The Applicant further confirmed that the business also performs work in gate automation, and while an electrical license to perform this work is not necessary, the Applicant engages one fully qualified electrician and two apprentices under the Electrical, Electronic and Communications Contracting Award 2020 (Electrical Award).It is these three employees who therefore still technically fall under the scope and operation of the Agreement and must be considered for the purposes of this application.

[7] In correspondence to the Commission, the Applicant also raised its difficulties during ‘tough covid times’ and stressed it is under pressure to keep financially afloat.

[8] In considering the challenges faced by the Applicant to provide further materials in support of its application, my chambers sought a copy of the employment contract of the three employees still covered by the Agreement on 7 September 2021. The following day on 8 September 2021 this information was received, and my chambers conducted an assessment to consider the impact of termination of the Agreement on the three employees.

[9] On 14 September 2021, my chambers sent a document to the Applicant which set out a comparison of the pay and entitlements employees are currently receiving from the Applicant under the contract of employment and pursuant to the terms of the Electrical Award, compared to what they would receive if pay and entitlements were provided in accordance with the Agreement. The analysis revealed that employees are currently paid between 12.56% - 26% above the Agreement rates, with various entitlements specified under the contract of employment and the Electrical Award being more beneficial than those under the Agreement.

[10] The Applicant provided evidence that the Commission’s analysis was sent to the three relevant employees for their consideration and comment. The employees were invited to raise any views about the application, and were encouraged to contact my chambers if they had any questions.

[11] At the time of writing this decision, no employees, unions or interested parties have contacted my chambers raising any views or objections in relation to the application.

[12] In considering circumstances and the likely effect termination of the Agreement will have on employees for the purposes of s.226(b)(ii) of the Act, I am satisfied that if the Agreement is terminated and employees are covered by the Electrical Award and receive their current rate of pay, they will be better off overall than if they remain covered by the Agreement. It is also noted that the Agreement has passed its nominal expiry date on 31 October 2007.

[13] I am satisfied that on assessment of the materials filed in the Commission, the termination of the Agreement is not contrary to the objects of the Act.

[14] Having regard to the fact that the Agreement has passed its nominal expiry date and that employees will revert to the Electrical Award with higher base rates of pay, I consider it appropriate to terminate the Agreement.

[15] I have considered the public interest, the materials lodged in support of the application, the views of the Applicant, that the Agreement has passed its nominal expiry date and that employees were made aware of the application and were given an opportunity to provide their views in relation to the application.

[16] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will operate from 14 October 2021.

COMMISSIONER

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