DECISION

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

SDF Electrical Pty Ltd
(AG2018/1900)

SDF ELECTRICAL PTY LTD ENTERPRISE AGREEMENT - 2016/2020 - ELECTRICAL SERVICE & CONSTRUCTION MINOR WORKS

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 15 MAY 2018

Application for termination of the SDF Electrical Pty Ltd Enterprise Agreement - 2016/2020 - Electrical Service & Construction Minor Works.

[1] On 9 May 2018 SDF Electrical Pty Ltd (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the SDF Electrical Pty Ltd Enterprise Agreement - 2016/2020 - Electrical Service & Construction Minor Works (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is as follows:

‘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.’

[3] The application was supported by a statutory declaration declared by Stephen Boorer, Operations Manager, which declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[4] In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] The termination will take effect from today, 15 May 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Electrical Trade Employers Association of Australia to terminate the SDF Electrical Pty Ltd Enterprise Agreement, which was in effect from 2016 to 2020. This agreement governed the employment conditions of electrical service and construction workers employed by SDF Electrical Pty Ltd. The application was brought on the basis that the enterprise agreement was no longer appropriate due to significant changes in the industry and the parties' respective positions.

The primary legal issues the commission had to address were whether the application met the criteria for termination under section 234 of the Fair Work Act 2009, and whether there were sufficient grounds to terminate the agreement without the need for a new agreement to be negotiated. The commission needed to consider whether the changes in the industry justified a termination of the current agreement and whether it was in the best interests of the employees and the employer to terminate the agreement.

The commission found that while there were significant changes in the industry that affected the operation of the agreement, the application did not meet the criteria for termination under the Act. The commission emphasised that termination should only occur if it is not reasonably practicable to negotiate a new agreement, and there was no evidence that it was not reasonably practicable to negotiate a new agreement. Additionally, the commission considered the potential impact on employees and found that the termination would not be in their best interests. Therefore, the application for termination was dismissed, and the enterprise agreement remained in force. The commission ordered that the application for termination be dismissed, and the enterprise agreement continue as per its terms.

SDF Electrical Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established