Programmed Skilled Workforce Limited

[2018] FWC 3945

[2018] FWC 3945

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Programmed Skilled Workforce Limited
(AG2018/2802)

Skilled Engineering Ltd - ETU Enterprise Agreement 2003 - 2005

(ODN AG2003/4859) [AG828887]

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 JULY 2018

Application for termination of the Skilled Engineering Ltd - ETU Enterprise Agreement 2003 - 2005.

[1] On 25 June 2018, Programmed Skilled Workforce Limited (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Skilled Engineering Ltd - ETU Enterprise Agreement 2003 - 2005 (Agreement). The Agreement covers the Applicant, the employees of the Applicant and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) as specified in clause 2 of the Agreement. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items

15 and 16 of Schedule 3 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (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.

[3] Section 225 of the Act provides:

“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.”

[4] Section 226 of the Act provides:

“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.”

[5] Ms C Winstanley, Human Resource Advisor of the Applicant, provided a statutory declaration dated 25 June 2018, declaring that Programmed Skilled Workforce Limited is the employer covered by the Agreement. The statutory declaration states that the Agreement nominally expired on 31 October 2005 and that the Agreement has since been replaced by another enterprise agreement. It is further declared that the termination will have no effect on the parties to the Agreement.

[6] The CEPU is an organisation which is covered by the Agreement. In correspondence to my chambers of 3 July 2018, the CEPU advised that it had no objection to the termination of the Agreement.

[7] Based on the material contained in the statutory declaration of the Applicant, filed with the application, I am 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 appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[8] The termination will operate from 3 July 2018.

[9] An Order giving effect to this decision is separately issued in PR608696.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR608695>