Schiller Mechanical Electrical Services

[2020] FWCA 1345

[2020] FWCA 1345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Schiller Mechanical Electrical Services
(AG2020/436)

SCHILLER ELECTRICAL SERVICES PTY LTD ENTERPRISE AGREEMENT 2017 - 2021

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 13 MARCH 2020

Application for termination of the Schiller Electrical Services Pty Ltd Enterprise Agreement 2017 - 2021

[1] This decision concerns an application made by Schiller Mechanical Electrical Services (company) to terminate the Schiller Electrical Services Pty Ltd Enterprise Agreement 2017 – 2021 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees covered by the Agreement that agreed to the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date is 3 January 2022. No employee organisations are covered by the Agreement.

[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] Based on the material contained in the statutory declaration of Ms Jennifer Schiller, which was filed with the application, I am satisfied that each of the requirements in s 223 of the Act has been met. I am satisfied that the company complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as a majority of employees who cast a valid vote approved the termination. I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[5] I note that a new enterprise agreement covering the relevant employees has recently been approved by the Commission and will commence to operate on 18 March 2020.

[6] The termination will operate from 18 March 2020.

[7] An order giving effect to this decision will be issued separately in PR717446.

DEPUTY PRESIDENT

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