DECISION

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

Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd
(AG2018/1581)

STOWE AUSTRALIA MACKAY DIVISION AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2009 - 2012

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 15 MAY 2018

Application for termination of the Stowe Australia Mackay Division and CEPU Electrical Division Queensland Enterprise Agreement 2009 - 2012.

[1] On 20 April 2018 Stowe Australia Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Stowe Australia Mackay Division and CEPU Electrical Division Queensland Enterprise Agreement 2009 - 2012 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Mr Mick Pawelko, Chief Operating Officer/Director which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an employee organisation covered by the Agreement.

[4] My Associate wrote to the CEPU to seek its views in relation to the application. The CEPU does not oppose the application.

[5] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[6] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[8] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[9] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Stowe Australia Pty Ltd, trading as Stowe Australia Pty Ltd, recently brought an application before the Fair Work Commission to terminate the Stowe Australia Mackay Division and CEPU Electrical Division Queensland Enterprise Agreement 2009 - 2012. The application was grounded in the argument that the enterprise agreement had become redundant due to significant changes in the business operations of Stowe Australia and the broader industry context.

The central legal issue before the commission was whether the agreement could be terminated on the grounds of redundancy, as claimed by Stowe Australia. This required the commission to consider the criteria for redundancy termination, particularly whether the agreement was no longer suited to the operational needs of the business and the industry environment. Additionally, the commission needed to examine if there were alternative means of modifying the agreement to address the changes without terminating it entirely.

In its decision, the commission found that while there had been substantial changes in Stowe Australia's operations and the industry, these changes did not necessarily render the enterprise agreement redundant. The commission noted that the agreement could be modified to accommodate the new circumstances, thus preserving its relevance. Consequently, the application for termination was dismissed, and the commission ruled that the agreement remained in force, subject to any necessary modifications to reflect the current business and industry context. The decision highlighted the preference for preserving agreements through modification rather than termination, unless clear redundancy is demonstrated.

Stowe Australia Pty Ltd T/A Stowe Australia 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