DECISION

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

Nardia Plumbing Pty Ltd
(AG2016/3188)

NARDIA PLUMBING PTY LTD AND CEPU PLUMBING DIVISION AGREEMENT 2005-2008

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

Application for termination of the Nardia Plumbing Pty Ltd and CEPU Plumbing Division Agreement 2005-2008.

[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 Agreement 2005-2008 (“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 applied to the Federal Circuit Court of Australia to terminate the Nardia Plumbing Pty Ltd and CEPU Plumbing Division Agreement 2005-2008. The application arose from disputes over the interpretation and execution of the agreement, specifically relating to the distribution of plumbing services within certain territories and the payment of royalties. The CEPU Plumbing Division opposed the application, arguing that the agreement was still in effect and that Nardia Plumbing Pty Ltd had failed to fulfil its obligations.

The court was tasked with determining whether there were grounds to terminate the agreement. The central issues were whether there had been a breach of the agreement by either party and whether such a breach justified termination. The court examined the terms of the agreement, the conduct of the parties, and the implications of any breaches on the ongoing relationship.

In its decision, the court found that there had indeed been breaches by both parties, but that these breaches did not warrant termination of the agreement. The court emphasised the importance of the parties adhering to the terms agreed upon and the need for them to resolve their disputes through the mechanisms provided within the agreement. The court ordered that the agreement would continue, with specific directions for both parties to comply with their obligations going forward. This included a requirement for both parties to engage in good faith negotiations to address outstanding issues.

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