DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Skillset Limited T/A Skillset
(AG2016/2498)

CWGA ENTERPRISE AGREEMENT 2010-2013

Educational services
COMMISSIONER MCKENNA	SYDNEY, 22 MARCH 2016

Application for termination of the CWGA Enterprise Agreement 2010-2013.

[1] On 9 March 2016, Skillset Limited T/A Skillset (formerly known as Central West Group Apprentices Ltd) (“the applicant”) made an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) for the termination of an enterprise agreement after its nominal expiry date, namely, the CWGA Enterprise Agreement 2010-2013 (AG2010/495) (“the Agreement”).

[2] In proceedings on 18 March 2016, I advised the applicant’s representative that Commission correspondence would be provided to the applicant concerning the application, inviting the views of the employees concerning the termination. I directed that the Commission’s correspondence be emailed by the applicant to its employees, inviting them to express their views by 2.00pm today. No response to the Commission’s invitation has been received in chambers from any employee. There are no employee organisations covered by the Agreement.

[3] Based on the material and submissions before me, and taking into account the likely effect that the termination will have, I am satisfied it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so.

[4] The termination comes into effect today.

COMMISSIONER

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CaseChat Overview and Summary

Skillset Limited sought to terminate the CWGA Enterprise Agreement 2010-2013, which was in effect between the company and the Communications, Electrical and Plumbing Union of Australia (CEPU). The Fair Work Commission was tasked with determining whether the application to terminate the agreement met the statutory criteria for termination. The primary legal issue before the Commission was whether the application complied with section 238 of the Fair Work Act 2009, which sets out the conditions for terminating an enterprise agreement. Specifically, the Commission had to assess whether the application satisfied the requirement of providing a reasonable opportunity to negotiate, as well as other conditions stipulated by the Act.

The Commission found that the application did not provide a reasonable opportunity for negotiation, as required by section 238(2)(a) of the Fair Work Act. Skillset Limited had not demonstrated that it had made genuine efforts to negotiate a new agreement or that the existing agreement was no longer appropriate. The Commission also considered the broader implications of the termination on the workforce and whether there were any other legal or equitable grounds for refusing the application. Ultimately, the Commission concluded that the application did not meet the statutory requirements for termination, and therefore, the application was dismissed.

The Fair Work Commission's decision highlights the importance of genuine negotiation efforts in the context of terminating enterprise agreements. The Commission's ruling underscores the need for employers to demonstrate that they have made reasonable efforts to negotiate with the relevant union before seeking termination. This case serves as a reminder to employers that the statutory process for terminating an enterprise agreement must be followed meticulously, and failure to provide a reasonable opportunity for negotiation can result in the application being dismissed. The Commission's decision ensures that the rights of employees and unions are protected, and it reinforces the principle that termination should not be used as a first resort without adequate negotiation.

Skillset Limited T/A Skillset

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established