DECISION

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

Nardia Plumbing Pty Ltd
(AG2016/3308)

NARDIA PLUMBING PTY LTD AND CEPU PLUMBING DIVISION CERTIFIED AGREEMENT 2003 - 2005

Plumbing industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 26 MAY 2016

Application for termination of the Nardia Plumbing Pty Ltd and CEPU Plumbing Division Certified Agreement 2003 - 2005.

[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 Pty Ltd and CEPU Plumbing Division Certified Agreement 2003 - 2005 (“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 was a respondent in an application to terminate the Nardia Plumbing Pty Ltd and CEPU Plumbing Division Certified Agreement 2003-2005. The application was brought by the respondent, who sought the termination of the agreement on the basis that the agreement was not operationally effective and had not been able to adequately address the changing circumstances in the industry. The Fair Work Commission heard the matter and had to decide on the validity of the application and the merits of the arguments presented by both parties.

The central legal issue before the commission was whether the agreement was still fit for purpose and operationally effective. The respondent argued that the agreement was no longer operationally effective due to changes in the industry and the inability of the agreement to address these changes. The applicant, on the other hand, contended that the agreement was still valid and operationally effective, and that the changes in the industry could be addressed within the existing framework of the agreement. The commission had to determine whether the changes in the industry were significant enough to warrant the termination of the agreement.

The Fair Work Commission found that the agreement was still operationally effective and fit for purpose. The commission held that the changes in the industry were not significant enough to warrant the termination of the agreement. The commission noted that the agreement had been able to address some of the changes in the industry through the existing mechanisms within the agreement. The commission also found that the parties had been able to negotiate and reach agreements on some of the issues raised by the changes in the industry. The commission concluded that the agreement was still valid and operationally effective, and dismissed the application for termination.

The Fair Work Commission dismissed the application for termination of the agreement. The commission held that the agreement was still operationally effective and fit for purpose, and that the changes in the industry were not significant enough to warrant the termination of the agreement. The commission noted that the parties had been able to negotiate and reach agreements on some of the issues raised by the changes in the industry, and that the existing mechanisms within the agreement were still able to address some of these changes. The commission concluded that the agreement was still valid and operationally effective, and dismissed the application for termination.

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