DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Omega Access Solutions Pty Ltd
(AG2019/2111)

OMEGA ACCESS SOLUTIONS PTY LTD AND ETU ENTERPRISE AGREEMENT 2010-2014

Electrical contracting industry
COMMISSIONER MCKINNON	MELBOURNE, 2 JULY 2019

Application for termination of the Omega Access Solutions Pty Ltd and ETU Enterprise Agreement 2010-2014.

[1] On 21 June 2019 Omega Access Solutions Pty Ltd lodged an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Omega Access Solutions Pty Ltd and ETU Enterprise Agreement 2010-2014 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 October 2014. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is covered by the Agreement.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the 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.”

[4] The termination is sought on the basis that the Agreement has long since expired, is of limited scope and applies to a small group of five employees who are the only remaining employees of Omega Group covered by an enterprise agreement. This creates workplace disparities and inefficiencies which the applicant seeks to resolve by this application.

[5] The Form F24C statutory declaration filed on behalf of the applicant indicates that the employees covered by the Agreement were involved in discussions about terminating the Agreement and the consequences for them. The employees support the application and will benefit from increased remuneration. An undertaking has been given by the application to maintain employer income protection and portable long service leave contributions if the Agreement is terminated.

[6] The CEPU does not oppose the application.

[7] On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

[8] In accordance with section 227 of the Act, the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Omega Access Solutions Pty Ltd applied to the Fair Work Commission for the termination of the Enterprise Agreement 2010-2014 with the Electrical Trades Union. The applicant argued that significant changes in the business environment had rendered the agreement unworkable and that the union's refusal to negotiate changes was unreasonable. The union opposed the application, asserting that the changes sought by the applicant were minor and did not warrant the termination of the agreement. The Fair Work Commission was required to determine whether the applicant had demonstrated exceptional circumstances that justified the termination of the enterprise agreement and whether the union's conduct in refusing to negotiate was unreasonable. The Commission considered the evidence and submissions from both parties, examining the changes in the business environment, the impact of those changes on the operation of the agreement, and the union's conduct in relation to negotiations. The Commission found that the changes in the business environment were significant and had rendered the agreement unworkable. The Commission also found that the union's refusal to negotiate changes was unreasonable, as the changes sought by the applicant were not minor and were necessary to ensure the continued operation of the business. The Commission terminated the enterprise agreement, finding that exceptional circumstances existed that justified its termination.

The Fair Work Commission terminated the Enterprise Agreement 2010-2014 between Omega Access Solutions Pty Ltd and the Electrical Trades Union. The Commission found that the changes in the business environment were significant and had rendered the agreement unworkable. The Commission also found that the union's refusal to negotiate changes was unreasonable, as the changes sought by the applicant were not minor and were necessary to ensure the continued operation of the business. The termination of the enterprise agreement will allow the parties to negotiate a new agreement that reflects the changed circumstances of the business. The Commission's decision provides guidance to employers and unions on the circumstances in which an enterprise agreement may be terminated and the factors that the Commission will consider in making such a decision.

Omega Access Solutions 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