TMA Australia Pty Limited

[2014] FWCA 3758

[2014] FWCA 3758

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

TMA Australia Pty Limited
(AG2014/865)

ETU AND (TTM EQUIPMENT (VIC) PTY LTD) ENTERPRISE AGREEMENT 2004-2007

Electrical contracting industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 10 JUNE 2014

Application for termination of the ETU and TTM Equipment (Vic) Pty Ltd Enterprise Agreement 2004-2007.

[1] On 14 April 2014 TMA Australia Pty Limited (the Applicant) lodged an application to terminate the following agreement:

ETU and (TTM Equipment (Vic) Pty Ltd) Enterprise Agreement 2004-2007 (AG840920) (the Agreement).

[2] The application is made pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] Section 226 of the Fair Work Act 2009 (the Act) also relevantly provides:

“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.”

[4] In accordance with Rule s.26(2) of the Fair Work Australia Rules 2013, the Applicant provided a statutory declaration and submission from its Executive Director, Corriene Karam in support of its application.

[5] It is submitted that:

● The agreement passed it nominal expiry date on 31 October 2007;

● The Agreement is, in many respects, inferior to the modern award;

● The Agreement creates inconvenience and confusion;

● The employee organisation, The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has been contacted but has not provided any comment.

[6] The Agreement applies to only one employee who provided a statement supporting its termination. The Applicant has provided an undertaking that the employee will not have his wages or hours of work altered as a result of the termination of the Agreement. Consequently, no opposition was received from any employee.

[7] The Fair Work Commission notes and accepts the undertaking provided by the employer and it is taken to be a term of the Agreement. A copy of the undertaking is attached to this decision as Annexure A

[8] Having considered the statutory tests contained in s.226, I am satisfied that it is not contrary to the public interest and that it is appropriate in all the circumstances to terminate the agreement.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

<Price code A, AG840920  PR551514>