Pipe Services & Installations Pty Ltd

[2017] FWCA 879

[2017] FWCA 879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Pipe Services & Installations Pty Ltd
(AG2017/338)

PIPE SERVICES AND INSTALLATIONS PTY LTD ENTERPRISE AGREEMENT 2011

Plumbing industry
COMMISSIONER HUNT	BRISBANE, 22 MARCH 2017

Application for termination of the Pipe Services & Installations Pty Ltd Enterprise Agreement 2011.

[1] On 9 February 2017, Pipe Services & Installations Pty Ltd (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Pipe Services and Installations Pty Ltd Enterprise Agreement 2011 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is as follows:

‘223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.’

[3] The application was supported by a statutory declaration on behalf of the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast.

[4] The statutory declaration was declared by a contract bookkeeper, Ms Leanne Thomas, and not an officer or employee of the Employer as required pursuant to r. 26(1) of the Fair Work Commission Rules 2013 (the Rules). Mr Robert Brindell, Director of the Employer provided a signed statement advising that Ms Thomas was authorised to make the declarations on behalf of the Employer and that the content of Ms Thomas’ statement was accurate.

[5] On that basis, and pursuant to r.6(1) of the rules, r. 26(1) is dispensed with to the extent that it requires the statutory declaration to be declared by an officer or employee of the Employer.

[6] The application was made more than 14 days after the termination was agreed to. I have had regard to the Employer’s reasons for late lodgement and pursuant to s.222(3)(b) of the Act, I consider it is fair to extend the period until 9 February 2017.

[7] The Agreement does not cover any employer organisations or employee organisations.

[8] In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 22 March 2017.

COMMISSIONER

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