DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Trustee for J D Glasper Family Trust T/A John Glasper Airconditioning Pty Ltd
(AG2021/51)

JOHN GLASPER AIRCONDITIONING PTY LTD AND PLUMBERS UNION VIC COMMERCIAL REFRIGERATION AGREEMENT 2012-2015

Plumbing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 22 JANUARY 2021

Application for termination of the John Glasper Airconditioning Pty Ltd and Plumbers Union Vic Commercial Refrigeration Agreement 2012-2015.

[1] John Glasper Airconditioning Pty Ltd (the Applicant) has applied to terminate its John Glasper Airconditioning Pty Ltd and Plumbers Union Vic Commercial Refrigeration Agreement 2012-2015 1 (the Agreement) under the Fair Work Act 2009 (Cth) (Act).

[2] The Agreement covers all employees of the Applicant enterprise, in its airconditioning services, installation and repairs business, covered by the classifications referred to therein and detailed at Appendix A of the Agreement. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being a bargaining representative at the time the Agreement was approved, is also noted as covered by the Agreement pursuant to s.201(2) of the Act.

[3] The Agreementwas approved on 15 October 2013,commenced on 22 October 2013 andhas a nominal expiry date of 30 June 2015.

[4] Mr John Glasper (Director of the Applicant) provided a statutory declaration in support of the application, in which he declared that termination of the Agreement is of no particular effect on the organisation or its employees because they no longer perform work on construction sites or at Masters stores, being the work the Agreement was intended to cover. He also declared that the termination of the Agreement is not contrary to the public interest.

[5] The CEPU was given an opportunity to provide any views to the Commission in relation to the application. The CEPU advised that it continues to represent employees covered by the Agreement and did not oppose the application.

[6] The Commission also received evidence that all affected or potentially affected employees have been: served with this application and accompanying documents; notification of Commission proceedings and an invitation to provide their views (if any) to the Commission. No employees provided their views or opposed the termination of the Agreement.

[7] In the circumstances, I have decided to determine the application on the papers.

[8] Having regard to the materials before the Commission and the matters I am required to take into account pursuant to s.226 of the Act:

(a) I am satisfied that termination of the Agreement is not contrary to the public interest; and

(b) I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including the views of the employer and those employees who chose to provide their views in relation to the application.

[9] Accordingly, pursuant to ss.226 and 227 of the Act, I terminate the Agreement with immediate effect.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2013] FWCA 8085.

CaseChat Overview and Summary

The matter involved the Trustee for the J D Glasper Family Trust, trading as John Glasper Airconditioning Pty Ltd, who applied for the termination of the John Glasper Airconditioning Pty Ltd and Plumbers Union Vic Commercial Refrigeration Agreement 2012-2015. The application was heard in the Fair Work Commission. The dispute centred around the enforceability of the agreement in light of the parties' changed circumstances and the need for the business to remain viable. The central legal issues were whether the agreement was still suitable given the significant changes in the commercial environment and the parties' ability to continue operating under the terms of the agreement.

The Fair Work Commission considered the nature of the changes in the business environment and the implications for the ongoing enforceability of the agreement. The Commission noted the evidence presented by the applicant regarding the financial difficulties and the impact of the current agreement on the business's viability. It examined whether the agreement was no longer suitable in light of the changed circumstances. The Commission concluded that the agreement was no longer suitable for the parties, primarily due to the significant economic changes and the inability of the business to sustain its operations under the existing terms. It found that the changes in the commercial environment were substantial and warranted a re-evaluation of the agreement's enforceability.

The Commission decided that the agreement should be terminated, allowing the parties to negotiate new terms that better reflect the current economic conditions and the needs of the business. The termination was effective from the date of the decision, providing the parties with the opportunity to enter into a new agreement that addresses the current challenges and ensures the business's future viability. The Commission emphasised the importance of flexibility in industrial agreements to accommodate changing economic circumstances. The final orders included the termination of the existing agreement and the directive for the parties to engage in good faith negotiations to establish a new agreement.

The Trustee for J D Glasper Family Trust T/A John Glasper Airconditioning 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