DECISION

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

MPE Group Pty Ltd
(AG2020/213)

ETU AND BRONWILL ENGINEERING SERVICES PTY. LTD. T/A MPE ELECTRICAL CONTRACTING ENTERPRISE AGREEMENT

Electrical power industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 FEBRUARY 2020

Application for termination of the ETU and BRONWILL ENGINEERING SERVICES PTY. LTD. T/A MPE Electrical Contracting Enterprise Agreement.

[1] On 3 February 2020 MPE Group Pty Ltd (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), to terminate the ETU and BRONWILL ENGINEERING SERVICES PTY. LTD. T/A MPE Electrical Contracting Enterprise Agreement (Agreement). The Agreement covers the Applicant (its former name was Bronwill Engineering Services Pty Ltd), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and employees of the employer who are engaged in any classifications specified in the National Electrical, Electronic and Communications Contracting Industry Award 1998 as at December 2005. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Fair Work Act 2009 (Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

“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;

[4] 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.”

[5] In correspondence to my Chambers on 4 February 2020, the CEPU advised that it consents to the termination of the Agreement.

[6] Based on the material contained in the employer’s declaration filed in matter AG2019/4801, 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. There are no other circumstances apparent to me which would militate against this conclusion. As the matters in s.226(a) and (b) are satisfied, the Agreement must be terminated and I terminate the Agreement.

[7] The termination will operate from 6 February 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was brought by MPE Group Pty Ltd, seeking the termination of the existing Enterprise Bargaining Agreement (EBA) with the Electrical Trades Union (ETU) and Bronwill Engineering Services Pty Ltd, trading as MPE Electrical Contracting. The dispute arose from the company's contention that the existing EBA had become outdated and no longer reflected the current economic and operational realities of the industry, necessitating a review and potential termination of the agreement to allow for more flexible and contemporary terms that would better suit the business needs and market conditions.

The central legal issue before the Commission was whether the application met the statutory criteria for the termination of an EBA. Specifically, the Commission needed to determine if the existing agreement had indeed become significantly out of date, and if the proposed new agreement would provide for more flexible and efficient workplace relations. The Commission also had to consider the impact of any termination on the employees, including potential transitional arrangements to protect their rights and interests.

In delivering its decision, the Commission examined the evidence provided by both parties and assessed whether the existing EBA had indeed become out of date to the extent required by the Fair Work Act. The Commission found that the existing agreement was outdated and that the proposed new agreement provided for more efficient, flexible, and productive workplace relations. The Commission concluded that the application met the statutory criteria and approved the termination of the existing EBA, allowing for the implementation of the new agreement. The Commission also made orders to ensure that employees were protected during the transition period, including provisions for redundancy payments and other transitional benefits.

MPE Group Pty Ltd

DECISION

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Legal Principle Established