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Re Allen & O'Brien Pty Ltd

Re Allen & O'Brien Pty Ltd

Case [2016] FWCA 1906 1 April 2016

Jurisdiction

Public Interest

Enterprise Agreement

Employment & Labour Law

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[2016] FWCA 1906

FAIR WORK COMMISSION

DECISION

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

Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services
(AG2015/3736)

ALLEN & O'BRIEN PTY LTD T/A O'BRIEN ELECTRICAL SERVICES ENTERPRISE AGREEMENT 2010-2014

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 1 APRIL 2016

Application for termination of the Allen & O'Brien Pty Ltd t/a O'Brien Electrical Services Enterprise Agreement 2010-2014; not satisfied that it is not contrary to the public interest; application dismissed.

Introduction

[1] Allen & O’Brien Pty Ltd (Applicant) is covered by an enterprise agreement titled the Allen & O’Brien Pty Ltd t/a O’Brien Electrical Services Enterprise Agreement 2010 – 2014 (Agreement). The nominal expiry date of the Agreement is 31 October 2014 and it continues in operation.

[2] The Applicant and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), in its capacity as a bargaining representative, have been bargaining or attempting to bargain since February or March of 2015 1 for an enterprise agreement that, if made and approved by the Commission, would replace the Agreement.

[3] On 20 June 2015, the Applicant applied pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the Agreement.

[4] The CEPU is also covered by the Agreement and opposes its termination.

[5] I have decided to dismiss the application and these are my reasons for doing so.

Relevant legislative provisions

[6] The legislative mechanisms by which an enterprise agreement may be varied or terminated are dealt with in Division 7 of Part 2–4 of the Act. Subdivision C of Division 7 sets out the manner in which an enterprise agreement may be terminated by agreement, and for the approval of the termination of the enterprise agreement by the Fair Work Commission (Commission).

[7] Subdivision D of Division 7 of the Act contains provisions which enable the termination of an enterprise agreement after its nominal expiry date has passed.

[8] These provisions are as follows:

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Allen & O'Brien Pty Ltd

Details

AGLC: Re Allen & O'Brien Pty Ltd [2016] FWCA 1906
Case: [2016] FWCA 1906
Decision Date: 1 APRIL 2016

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by O'Brien Electrical Services to terminate the Enterprise Agreement between the employer and the employees represented by the Electrical Trades Union. The Fair Work Commission was required to decide whether terminating the agreement was not contrary to the public interest. The application was dismissed, with the Commission finding that terminating the agreement would not be in the public interest.

The legal issue before the Commission was whether terminating the Enterprise Agreement was contrary to the public interest. The Commission considered the impact of terminating the agreement on the employees, the employer, and the broader public. The Commission noted that terminating the agreement would result in the employees losing the protections provided by the agreement, including minimum wages and conditions. The employer argued that terminating the agreement was necessary to allow for greater flexibility in the workplace and to improve productivity. However, the Commission found that the potential benefits to the employer did not outweigh the potential harm to the employees and the broader public.

The Commission found that terminating the agreement would be contrary to the public interest. The Commission noted that the agreement provided important protections for employees, including minimum wages and conditions, and that terminating the agreement would result in a significant loss of these protections. The Commission also noted that the potential benefits to the employer did not outweigh the potential harm to the employees and the broader public. The Commission found that the agreement provided important protections for employees, including minimum wages and conditions, and that terminating the agreement would result in a significant loss of these protections.

The Fair Work Commission dismissed the application to terminate the Enterprise Agreement. The Commission found that terminating the agreement would be contrary to the public interest and that the potential benefits to the employer did not outweigh the potential harm to the employees and the broader public. The Commission noted that the agreement provided important protections for employees, including minimum wages and conditions, and that terminating the agreement would result in a significant loss of these protections.

Orders