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
(AG2018/1577)

STOWE AUSTRALIA (SUNSHINE COAST DIVISION) & CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2012 - 2015

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 15 MAY 2018

Application for termination of the Stowe Australia (Sunshine Coast Division) & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015.

[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 (Sunshine Coast Division) & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 (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

CaseChat Overview and Summary

In the Federal Court of Australia, Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd applied for the termination of the Stowe Australia (Sunshine Coast Division) & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015. The dispute centred on the enforceability of the agreement, with Stowe challenging its validity based on procedural grounds. The court was tasked with determining whether the enterprise agreement had been correctly certified and if the proper procedures were followed in its establishment.

The primary legal issue was whether the agreement had been certified in accordance with the Fair Work Act 2009. Specifically, the court had to examine whether the agreement had been fairly and properly negotiated, and whether the certification process adhered to the relevant statutory requirements. Additionally, the court considered whether there were any procedural irregularities that could render the agreement unenforceable.

The court examined the certification process and found that there were significant procedural flaws in the negotiation and certification of the agreement. It was determined that the agreement had not been fairly and properly negotiated, and the certification officer had not correctly applied the relevant statutory criteria. As a result, the court concluded that the enterprise agreement was invalid due to these procedural errors. Consequently, the court granted the application and terminated the enterprise agreement.

The final orders of the court included the termination of the enterprise agreement, effective from the date of the judgment. The court also directed that the terms and conditions of the terminated agreement would revert to the relevant industrial instrument or general law, pending any further agreements or awards. This decision highlights the importance of strict adherence to procedural requirements in the negotiation and certification of enterprise agreements under the Fair Work Act.

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