Online Fire & Security Pty Ltd T/A Online Fire Services

[2023] FWCA 2389

[2023] FWCA 2389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Online Fire & Security Pty Ltd T/A Online Fire Services

(AG2023/2411)

ONLINE FIRE & SECURITY PTY. LTD. AND CEPU PLUMBING DIVISION FIRE SERVICES UNION COLLECTIVE AGREEMENT 2019 - 2022

Plumbing industry
COMMISSIONER SPENCER	BRISBANE, 31 JULY 2023

Application for termination of the Online Fire & Security Pty. Ltd. and CEPU Plumbing Division Fire Services Union Collective Agreement 2019 - 2022

1. Online Fire & Security Pty Ltd T/A Online Fire Services (Online Fire Services/the Applicant) has applied to terminate the Online Fire & Security Pty Ltd And CEPU Plumbing Division Fire Services Union Collective Agreement 2019-2022 (the Agreement). The Agreement was approved on 31 May 2022 and nominally expired on 31 October 2022. The Agreement has passed its nominal expiry date.

1. Section 226 of the Fair Work Act 2009 (the Act) requires the Commission to terminate an enterprise agreement if the conditions in that section are met. It contains mandatory considerations in relation to the termination of an enterprise agreement under section 225 of the Act. Dealing with the matters of relevance in this case:

1. No employees covered by the Agreement: Mr Scott Mason, Director of the Applicant, filed a Form F24C Statutory Declaration in support of the application to terminate the Agreement. In his declaration, Mr Mason stated that there are no employees engaged under the Agreement and there have never been any employees employed under the Agreement. I am satisfied that the Agreement does not, and is not likely to, cover any employees.

1. Views of Persons covered: Online Fire Services supports the termination of the Agreement. The Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The CEPU filed a Form F24D confirming their support for the termination of the agreement.

226        When the FWC must terminate an enterprise agreement

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

1. In his statutory declaration, Mr Mason stated that the employer has not employed any employees under this Agreement and no employees are engaged under the Agreement. There has also been no bargaining for the renegotiation of the Agreement.

1. The Agreement covers the CEPU who consented to termination of the agreement.

1. Taking into account the information provided in response to the matters in section 226 of the Act, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 31 July 2023.

1. 
   I Order accordingly.

COMMISSIONER

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