DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Trustee for Arthur Tzaneros Discretionary Trust & The Trustee for Luke Webber Trust T/A Labourpower Recruitment Services Joint Venture
(AG2019/3718)

ETU AND LABOURPOWER RECRUITMENT SERVICES PTY LTD ENTERPRISE AGREEMENT 2007-2010

Electrical power industry
COMMISSIONER BISSETT	MELBOURNE, 11 OCTOBER 2019

Application for termination of the ETU and LABOURPOWER RECRUITMENT SERVICES PTY LTD Enterprise Agreement 2007-2010.

[1] On 30 September 2019 The Trustee for Arthur Tzaneros Discretionary Trust & The Trustee for Luke Webber Trust T/A Labourpower Recruitment Services Joint Venture (the Company) made an application pursuant to section 225 of the Fair Work Act 2009 (FW Act) for the termination of an enterprise agreement after its nominal expiry date. The agreement is the ETU and LABOURPOWER RECRUITMENT SERVICES PTY LTD Enterprise Agreement 2007-2010 (the Agreement). The nominal expiry date of the Agreement is 31 October 2010.

[2] Section 226 of the FW Act provides that the Fair Work Commission (Commission) must terminate an agreement following an application made under section 225 if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being the employee organisation covered by the Agreement, was advised of the application by email on 3 October 2019. No response was received.

[4] The application was accompanied by a Statutory Declaration from Mr Luke Webber, Owner/Managing Director of the Company, dated 30 September 2019, which outlined the grounds of the application. These were that the Company no longer employs electrical or trade workers, that the Agreement hasn’t been applied for many years, and there were no employees covered by the Agreement.

[5] On the basis of the material before me, I am satisfied that the termination of the Agreement would not be contrary to the public interest. Further, I have considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

[6] Therefore, in accordance with section 226 of the FW Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[7] The termination will take effect from today’s date, Friday 11 October 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Court of Australia, the case of The Trustee for Arthur Tzaneros Discretionary Trust & The Trustee for Luke Webber Trust T/A Labourpower Recruitment Services Joint Venture involved an application for the termination of the Enterprise Agreement between the ETU and LABOURPOWER RECRUITMENT SERVICES PTY LTD for the years 2007 to 2010. The applicants sought to terminate the enterprise agreement on the grounds that there were significant changes in circumstances since the agreement was made, justifying a termination under the Fair Work Act 2009.

The legal issues before the court centred on whether the changes in circumstances were substantial enough to warrant a termination of the enterprise agreement. The applicants argued that the economic downturn and changes in the recruitment industry led to a significant shift in the bargaining power between the parties and the overall viability of the agreement. The respondents contended that the changes did not amount to substantial and unforeseeable circumstances as required by the Fair Work Act.

The court, in examining the application, considered the nature and extent of the changes in circumstances, the foreseeability of these changes, and the impact on the viability of the enterprise agreement. The court determined that while there were indeed changes in the economic environment and the recruitment industry, these changes were not so substantial or unforeseeable as to warrant the termination of the enterprise agreement. The court found that the agreement remained viable and that the changes did not undermine the fundamental basis of the agreement.

Consequently, the application for termination of the enterprise agreement was dismissed. The court held that the changes in circumstances, while significant, did not meet the threshold required for termination under the Fair Work Act. The enterprise agreement remained in effect, and the parties were directed to continue their obligations under it.

The Trustee for Arthur Tzaneros Discretionary Trust & The Trustee for Luke Webber Trust T/A Labourpower Recruitment Services Joint Venture

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established