Pipefab Plumbing & Mechanical

[2018] FWC 6376

[2018] FWC 6376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Pipefab Plumbing & Mechanical
(AG2018/603)

Plumbing industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 OCTOBER 2018

Application for termination of the Pipefab Plumbing & Mechanical Services and CEPU Enterprise Agreement 2002-2005.

[1] On 21 February 2018, the Fair Work Commission (the Commission) received an application from Mr Peter Murphy on behalf of Pipefab Plumbing and Mechanical (the Applicant) pursuant to s 225 of the Fair Work Act 2009 (Act), to terminate the Pipefab Plumbing & Mechanical Services and CEPU Enterprise Agreement 2002-2005 (Agreement).

[2] In the Form F24B – Application for termination of an enterprise agreement after the nominal expiry date, Mr Murphy stated that the Agreement is expressed to cover the Applicant only. Mr Murphy stated that there were no employees or employee organisations covered by the Agreement. In the accompanying Form 24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, Mr Murphy stated that the Agreement had a nominal expiry date of 31 October 2005¹ and that the termination was not contrary to the public interest because the “enterprise had ceased trading”.² Mr Murphy further stated that the effect of the termination of the Agreement would be to “avoid confusion”.³

[3] Due to the operative dates of the Agreement, being 2003 – 2006, the Agreement is not covered by the current provisions under the Act relating to the termination of enterprise agreements after the nominal expiry date, namely s 225 of the Act. Rather, the application should have been made pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).

[4] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[5] On 19 March 2018, my chambers sent Mr Murphy email correspondence to the address listed on the application, advising that upon review of the application, it had become apparent that the incorrect application form had been lodged. The email correspondence attached a blank Form F28 Application for termination of collective agreement-based transitional instrument and instructed Mr Murphy to file a copy of the correct application to the Melbourne registry of the Commission and to serve a copy on the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The email addresses of the Melbourne Registry and CEPU were also provided. The correspondence also stated that the Form F28 must be accompanied by a statutory declaration and that the Form 24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date cannot be used in support of the application, but that a standard statutory declaration form can be used. No reply was received from Mr Murphy in relation to this correspondence.

[6] On 6 June 2018, my chambers again wrote to Mr Murphy. This correspondence reiterated the information sent to Mr Murphy in the email of 19 March 2018 and again attached a blank Form F28 Application for termination of collective agreement-based transitional instrument with instructions to file a copy with the Melbourne Registry and serve a copy on the CEPU. The email and postal address of the Melbourne Registry was provided, as was the email address of the CEPU. The correspondence again advised that the Form 24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date cannot be used in support of the application, but that a standard statutory declaration form can be used. No reply was received from Mr Murphy in relation to this correspondence.

[7] On 12 July 2018, my chambers contacted Mr Murphy by telephone whereby he was informed that the incorrect form had been used for his application. Mr Murphy asked for the email to be sent to him again to the email address that was listed on the application. That day, my chambers forwarded Mr Murphy the email that was sent to him on 19 March 2018.

[8] On 17 July 2018, my chambers received an email from Mr Murphy attaching a completed Form F28 Application for termination of collective agreement-based transitional instrument. It did not attach an accompanying statutory declaration, nor was it filed with the Melbourne Registry or served on the CEPU.

[9] On 18 July 2018, my chambers sent Mr Murphy an email advising that his application must be accompanied by a statutory declaration and that the Form 24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date that he previously filed cannot be used. Again, Mr Murphy was instructed to file a copy of both the Form F28 Application for termination of collective agreement-based transitional instrument and a statutory declaration with the Melbourne Registry and to serve a copy on the CEPU. No reply was received in response to this email and to date, Mr Murphy has not filed an accompanying statutory declaration supporting his application.

[10] Sections 225 and 226 of the Act stipulates when the Commission must terminate an enterprise agreement and what it must satisfy itself of:

“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;

(a) 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.”

[11] I am unable to be satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss 226(b)(i) and (ii), I consider that it is not appropriate to terminate the Agreement. There is nothing before me on which I can satisfy myself that might militate for or against the termination of the Agreement.

[12] Based on the failure of Mr Murphy to file a statutory declaration, despite repeated requests by my chambers to do so, I consider that it is not appropriate to approve the termination of the Agreement. The Application to terminate the Agreement is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AG830333  PR701323 >

1 Form 24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, at 1.4.

2 Form 24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, at 2.1.

3 Form 24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, at 2.3.