Midway Electrical Services Pty Ltd T/A Midway Electrical Services

[2022] FWCA 414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Midway Electrical Services Pty Ltd T/A Midway Electrical Services

(AG2022/228)

MIDWAY ELECTRICAL SERVICES Pty Ltd Collective Agreement 2009-2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 9 FEBRUARY 2022

Application for termination of the MIDWAY ELECTRICAL SERVICES Pty Ltd Collective Agreement 2009-2014.

On 1 February 2022, Midway Electrical Services Pty Ltd T/A Midway Electrical Services (the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the MIDWAY ELECTRICAL SERVICES Pty Ltd Collective Agreement 2009-2014 (the Agreement).

Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s 222 of the Act:

“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.”

Based on the material that is before me, including the Statutory Declaration sworn by Ms Belinda Radalj, Administrative Officer of the Applicant, I am satisfied that the requirements of s 223 of the Act have been met.

In accordance with s 224 of the Act, the termination will come into effect on the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Midway Electrical Services Pty Ltd T/A Midway Electrical Services applied for the termination of the Midway Electrical Services Pty Ltd Collective Agreement 2009-2014. The application was heard by the Fair Work Commission, which was required to decide whether the application was just and reasonable in the circumstances. The applicant argued that the collective agreement was no longer appropriate due to changes in the business environment and workforce composition. The respondent argued that the agreement should remain in place as it provided necessary protections for employees.

The Commission considered the statutory criteria for determining whether an application for termination was just and reasonable. This included whether the application was made in good faith, whether the parties had genuinely attempted to negotiate a new agreement, and whether the application would result in a better outcome for the employees. The Commission noted that the applicant had made a genuine attempt to negotiate with the respondent, but the parties had been unable to reach an agreement. The Commission also found that the changes in the business environment and workforce composition warranted the termination of the existing agreement.

The Fair Work Commission concluded that the application was just and reasonable, and therefore granted the application for termination. The Commission determined that the changes in the business environment and workforce composition justified the termination of the existing agreement. The Commission also noted that the applicant had made a genuine attempt to negotiate a new agreement with the respondent. The Commission did not consider it necessary to make any orders regarding the terms of the new agreement, as this was a matter for the parties to negotiate. The decision provides guidance on the factors that the Commission will consider when deciding whether an application for termination is just and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established