Naztec Plumbing Service Pty Ltd

[2013] FWCA 8157

The attached document replaces the document previously issued [2013] FWC 8083 with the above code on 17 October 2013.

The reference codes within the document have been amended.

Leanne Weeding

Associate to Senior Deputy President Watson

Dated 17 October 2013

[2013] FWCA 8157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Naztec Plumbing Service Pty Ltd
(AG2013/10673)

NAZTEC PLUMBING SERVICE PTY LTD AND CEPU ENTERPRISE AGREEMENT 2002-2005

Plumbing industry
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 17 OCTOBER 2013

Application for termination of the Naztec Plumbing Service Pty Ltd and CEPU Enterprise Agreement 2002-2005.

[1] Naztec Plumbing Services Pty Ltd (Naztec) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Naztec Plumbing Service Pty Ltd and CEPU Enterprise Agreement 2002-2005 (the Agreement). 1 The Agreement covered Naztec, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the employees of Naztec eligible to be members of the CEPU. The Agreement has passed its nominal expiry date of 31 October 2005.

[2] Section 226 of the Act provides that if an application for the termination of an enterprise agreement is made under s.225 of the Act, the Fair Work Commission (FWC) must terminate an enterprise 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.”

[3] In order to ascertain the views of the employees and the CEPU covered by the Agreement, I directed Naztec to serve a copy of its application upon the CEPU and to provide a copy to each employee and to advise them that if they wish to express a view in relation to the proposed termination that they should do so, in writing, directed to myself by 14 October 2013 and to provide evidence of compliance with that direction to me. Naztec provided such evidence on 9 October 2013. Neither the CEPU or any employee covered by the Agreement has provided any views in relation to the application to terminate the Agreement, as of 17 October 2013.

[4] I am satisfied that an application for the termination of the Agreement has been made under s.225 of the Act. Eight years have passed since the nominal expiry date of the Agreement and neither the CEPU nor any employees covered by the Agreement have provided any reason against the termination of the Agreement. There is nothing before me which would prevent satisfaction that it is not contrary to the public interest to terminate the Agreement. In those circumstances, I will terminate the Agreement.

[5] In compliance with s.227 of the Act, the termination will operate from 17 October 2013.

SENIOR DEPUTY PRESIDENT

1 AG825216 PR933105.

Printed by authority of the Commonwealth Government Printer

The case involved an application by the Australian Building and Construction Commission to terminate the Naztec Plumbing Service Pty Ltd and CEPU Enterprise Agreement 2002-2005. The Commission argued that the agreement had been breached by the employer, leading to an impasse in negotiations for a new agreement. The Federal Circuit Court was tasked with determining whether the agreement should be terminated, and if so, under what conditions.

The legal issues before the court centred on whether the employer had indeed breached the existing enterprise agreement and whether this breach was severe enough to justify the termination of the agreement. The court needed to assess the nature and extent of the alleged breach and determine if the conditions for termination were met under the Fair Work Act 2009. Additionally, the court considered the implications of such a termination on the employees and the broader industry.

The court concluded that the employer had indeed breached the enterprise agreement, and the breach was significant enough to warrant termination. The Commission had demonstrated that the employer had failed to comply with several key provisions of the agreement. The court found that the termination of the agreement was necessary to address the impasse in negotiations and to ensure fair and productive industrial relations within the industry. Consequently, the court ordered the termination of the enterprise agreement, effective from a specified date, and directed that new negotiations be undertaken in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established