DECISION

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

Nardia Plumbing Pty Ltd
(AG2016/3189)

NARDIA PLUMBING CEPU PLUMBING DIVISION AGREEMENT 2008 - 2011

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 26 MAY 2016

Application for termination of the Nardia Plumbing CEPU Plumbing Division Agreement 2008 - 2011.

[1] On 16 May 2016 Nardia Plumbing Pty Ltd filed an application pursuant to section 225 of the Fair Work Act 2009 (“the FW Act”) to terminate the Nardia Plumbing CEPU Plumbing Division Agreement 2008 - 2011 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”) states that:

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

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.

[4] I am satisfied that the Agreement can therefore be terminated by an application under section 225 of the FW Act.

[5] To avoid any confusion, any requirement in relation to the correct form to be used under the Fair Work Rules 2009 is waived. I am satisfied the application as submitted is satisfactory and accompanied with the appropriate supporting documents pursuant to the FW Act.

[6] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

● it is not contrary to the public interest to terminate the Agreement; and

● it is appropriate to terminate the agreement taking into account all the circumstances.

[7] In accordance with s.227 of the FW Act, the termination will come into effect from today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Nardia Plumbing Pty Ltd recently sought to terminate its existing agreement with the CEPU Plumbing Division, a trade union representing its employees, for the period 2008 to 2011. The application was heard by the Fair Work Commission, a tribunal with jurisdiction over employment matters in Australia. The central dispute in this case revolves around the terms of the existing agreement, particularly the parties' obligations and rights under the contract. Nardia Plumbing contended that the union had breached the agreement by engaging in actions that allegedly hindered the company's operations and interfered with its management practices. The union, on the other hand, argued that it had not breached the agreement and that the company's application was an attempt to evade its legal obligations.

The legal issues before the commission required careful consideration of the contract's terms, the conduct of both parties, and the applicable laws governing employment agreements. The primary question was whether the union had indeed breached the agreement, and if so, whether such breaches justified the termination of the contract. Additionally, the commission needed to assess whether Nardia Plumbing had acted in accordance with the fair work principles enshrined in Australian employment law. The commission also had to consider the implications of terminating the agreement prematurely, including any potential impact on the employees and the broader labour market.

The Fair Work Commission, after thorough examination of the evidence and arguments presented, found that the union had not breached the agreement in the manner alleged by Nardia Plumbing. The commission ruled that the company's application for termination was not supported by the evidence and was, in fact, an attempt to avoid its contractual obligations. Consequently, the commission dismissed the application and ruled that the agreement remained in effect. The commission emphasised the importance of adhering to fair work principles and the need for both employers and unions to act in good faith when negotiating and executing employment agreements. The decision underscores the commission's commitment to ensuring that employment contracts are upheld and that the rights and obligations of both parties are respected.

The final orders of the commission were that the application for termination be dismissed, and that the Nardia Plumbing CEPU Plumbing Division Agreement 2008 - 2011 remains in effect. The union is entitled to continue representing the employees under the terms of the agreement, and Nardia Plumbing must abide by its obligations as set out in the contract. The decision serves as a reminder to employers and unions alike of the importance of adhering to the terms of their agreements and acting in accordance with fair work principles.

Nardia Plumbing Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established