DECISION

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

Pulis Professional Plumbing Pty Ltd
(AG2016/3100)

THE PULIS PROFESSIONAL PLUMBING PTY LTD AND CEPU - PLUMBING DIVISION (VIC) ENTERPRISE AGREEMENT 2011-2015

Plumbing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 17 MAY 2016

Application for termination of the Pulis Professional Plumbing Pty Ltd and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011-2015.

[1] On 4 May 2016, Pulis Professional Plumbing Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Pulis Professional Plumbing Pty Ltd and CEPU – Plumbing Division (VIC) Enterprise Agreement 2011-2015 (Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date is 31 October 2015.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an employee organisation which is covered by the Agreement. Correspondence was received from the CEPU on 17 May 2016 advising that there was no opposition to the termination of the Agreement.

[5] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant complied with s.220(2) of the Act in relation to termination of the agreement. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 17 May 2016.

[7] An order giving effect to this decision is separately issued in PR580432.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves Pulis Professional Plumbing Pty Ltd, an employer, and CEPU - Plumbing Division (Vic), a union, as parties to an Enterprise Agreement. The dispute was brought before the Fair Work Commission, the body responsible for resolving employment-related disputes in Australia. The employer sought to terminate the Enterprise Agreement that was in place from 2011 to 2015, citing various grounds for dissatisfaction with the terms and conditions it established. The union, on the other hand, argued against the termination, asserting that the agreement should remain in effect.

The legal issues before the Commission centred on the conditions under which an Enterprise Agreement could be terminated before its expiration. The Commission had to assess the employer's claims of hardship and whether the changes sought would significantly benefit the business while ensuring fairness to the employees. Additionally, the Commission needed to consider the procedural correctness of the application, including whether the employer had followed the necessary steps as outlined in the Fair Work Act 2009.

The Fair Work Commission evaluated the evidence presented by both parties and found that the employer had not demonstrated sufficient grounds for terminating the agreement. The Commission determined that the proposed changes did not sufficiently address the employer's concerns about hardship and that the application process had been conducted appropriately. Consequently, the Commission decided against terminating the agreement, ruling that it should continue to govern the employment conditions of the union members. The decision emphasised the importance of maintaining the balance between the rights of employers and employees as stipulated in the Fair Work Act 2009.

Pulis Professional Plumbing Pty Ltd

DECISION

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