DECISION

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

Nardia Plumbing Pty Ltd
(AG2016/3187)

CEPU PLUMBING DIVISION AND NARDIA PLUMBING ENTERPRISE AGREEMENT 2000-2002

Plumbing industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 26 MAY 2016

Application for termination of the CEPU Plumbing Division and Nardia Plumbing Enterprise Agreement 2000-2002.

[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 CEPU Plumbing Division and Nardia Plumbing Enterprise Agreement 2000-2002 (“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 the applicant in an application before the Fair Work Commission, seeking the termination of the CEPU Plumbing Division and Nardia Plumbing Enterprise Agreement 2000-2002. The dispute arose due to alleged breaches of the agreement by the respondent, CEPU. The application was heard in the Commission’s workplace relations division.

The primary legal issue before the Commission was whether the breaches alleged by the applicant were sufficient to warrant the termination of the enterprise agreement. The applicant argued that the breaches were fundamental and pervasive, affecting the operational capacity and the relationship between the parties. The respondent, on the other hand, contended that the breaches were minor and did not justify the termination of the agreement.

In its decision, the Commission noted that termination of an enterprise agreement should only be considered in exceptional circumstances where there has been a fundamental breach that undermines the entire agreement. The Commission examined the nature and extent of the breaches and found that while there were issues, they did not reach the level of fundamental breach required for termination. The Commission concluded that the breaches, while serious, did not justify terminating the entire agreement and dismissed the application.

The Fair Work Commission ordered that the application for termination of the CEPU Plumbing Division and Nardia Plumbing Enterprise Agreement 2000-2002 be dismissed. The Commission directed the parties to return to the bargaining table to address the issues raised and to seek a resolution through negotiation.

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