P-Mac Electrical Pty Ltd

[2013] FWCA 1475

[2013] FWCA 1475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

P-Mac Electrical Pty Ltd
(AG2013/4496)

ETU AND P-MAC ELECTRICAL PTY LIMITED ENTERPRISE AGREEMENT 2007-2010

Electrical power industry
COMMISSIONER LEE	MELBOURNE, 8 MARCH 2013

Application for termination of the ETU and P-MAC Electrical Pty Limited Enterprise Agreement 2007 - 2010 after its nominal expiry date.

[1] This matter involves an application made by P-MAC Electrical Pty Ltd (the Applicant) for termination of the ETU and P-MAC Electrical Pty Limited Enterprise Agreement 2007-2010 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the FW Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The agreement is a collective agreement-based transitional instrument and has a nominal expiry date of 31 October 2010.

[3] Item 16 of Schedule 3 to the Transitional Act provides;

“16 Collective agreement-based transitional instruments: termination by FWA

(1) 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.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the Act, at sections 225 - 227, states;

“Subdivision D—Termination of enterprise agreements after nominal expiry date

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] The Agreement has passed its nominal expiry date. The employer covered by the Agreement has made and is entitled to make application to the Fair Work Commission to terminate the agreement.

[6] The application was lodged on 22 January 2013. On 1 February 2013, I wrote to the Applicant seeking further information with regard to the requirements of s.226 of the Act. I also noted that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) was noted in Clause 1 of the Agreement as a party to the Agreement but that contact details for the Union had not been provided in the Application.

[7] On 9 February 2013, I received an amended application from the Applicant (including contact details for the CEPU) and a letter from Mr Paul McBain advising that his last employee was due to leave employment with the Applicant on 13 February 2013. The letter advised that there were no plans to employ any staff in the current economic climate.

[8] On 13 February 2013, I forwarded a copy of the application and relevant correspondence sent and received in this matter to the CEPU. I sought the views of the CEPU as to the termination of the Agreement.

[9] On 13 February 2013, the CEPU advised that it had no objection to the termination of the Agreement and did not provide any submissions in relation to the matters to be considered under section 226 of the Act.

[10] On 19 February 2013, I wrote to the Applicant advising that I had been advised that the CEPU did not object to the application. I advised that whilst his letter of 9 February 2013 was informative, I could not rely on it as evidence that the agreement before me for termination does not cover any employees. I sought a statutory declaration from the Applicant in relation to this matter.

[11] On 8 March 2013, I received an appropriately declared statutory declaration from the Applicant stating that the Applicant does not have any employees covered by the Agreement.

[12] Given the above, I am satisfied, in accordance with s. 226(a) of the Act, that it is not contrary to the public interest to terminate the agreement. I am also satisfied, in accordance with s. 226(b) that it is appropriate to terminate the agreement having regard to the circumstances of the matter. I am therefore required by s.226 of the Act to terminate the agreement.

[13] The termination of the agreement shall operate from the date of this decision.

COMMISSIONER

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