DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

RDE Projects Pty Ltd
(AG2020/2867)

RDE PROJECTS PTY LTD AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2018 - 2019

Electrical contracting industry
COMMISSIONER SPENCER	BRISBANE, 8 OCTOBER 2020

Application for termination of the RDE Projects Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2018-2019.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by RDE Projects Pty Ltd (the Applicant) to terminate the RDE Projects Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2018 - 2019 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 31 December 2019.

[3] Sections 225 and 226 of the Act provide:

“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;

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.”

[4] Mr Raymond Davies, Director for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Davies stated that the Applicant sought the termination of the Agreement on the basis of the completion of projects and demobilization of the workforce in March 2019 and that no further electrical contracting work has been undertaken by the Applicant since this time. Mr Davies stated that no employees are currently employed by the Applicant under this agreement.

[5] In a further statement filed by the Mr Davies on 28 September 2020, it was submitted that as the Applicant has no intention to engage employees under the expired agreement, it is in the public interest to approve the application as it would result in economics benefit to the community. Mr Davies submitted that the termination of the agreement would facilitate the negotiation of a new enterprise agreement that would deliver productivity benefits.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was a party to the Agreement. On 24 September 2020 I issued Directions requesting the CEPU to advise whether they supported termination of the Agreement or opposed the termination. On 7 October 2020, Ms Pat Rogers, an Industrial Officer for the CEPU, wrote to my Chambers and advised the CEPU did not wish to be heard in relation to the application.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 8 October 2020.

[8] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by a party for the termination of the RDE Projects Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2018-2019. The application was heard by the Fair Work Commission, which is the industrial relations tribunal in Australia. The primary dispute was over whether the conditions of the enterprise agreement could be terminated on the grounds of hardship.

The legal issues before the Commission were whether the enterprise agreement had become unworkable or if there were significant changes in circumstances that would render the agreement difficult to maintain. This required an examination of the application's evidence and submissions, as well as the obligations and rights under the Fair Work Act 2009. The Commission had to balance the interests of the parties, particularly focusing on whether the agreement was no longer capable of being performed without significant injustice.

The Fair Work Commission assessed the evidence presented and determined that the application did not meet the threshold for termination of the enterprise agreement. The Commission found that while there were financial difficulties, they did not reach the level of unworkability required under the Act. The Commission also noted that the application failed to demonstrate significant changes in circumstances that would warrant a termination. Consequently, the application was dismissed, and the enterprise agreement remained in effect.

The final orders of the Commission were that the application for the termination of the enterprise agreement be dismissed, and that the agreement continue to operate under its existing terms until its expiration.

RDE Projects Pty Ltd

DECISION

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