Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd

[2020] FWCA 5158

[2020] FWCA 5158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd
(AG2020/2710)

OVERFLOW INDUSTRIAL PTY LTD ENTERPRISE AGREEMENT 2014- 2018

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 25 SEPTEMBER 2020

Application for termination of the Overflow Industrial Pty Ltd Enterprise Agreement 2014- 2018.

[1] The Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd has made an application for the Fair Work Commission (Commission) to terminate the Overflow Industrial Pty Ltd Enterprise Agreement 2014- 2018 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (FW Act). The application was made on 10 September 2020.

[2] On 17 September 2020, I conducted a mention hearing by telephone with Mr Cimon Albertsen of the Applicant, in attendance.

[3] At the mention, the Applicant submitted in support of the application and the Form F24C – Statutory declaration, that the reason they seek for the Agreement to be terminated is that the Agreement has been replaced with a subsequent enterprise agreement which has been approved by the Commission. As a result, there are currently no employees covered by the Agreement and it therefore need not remain in operation. The Applicant further submitted that by terminating the replaced agreement reduces confusion over which is the current agreement.

[4] When the Agreement covered employees, it applied to employees in electrical trade related roles excluding administrative and managerial staff.

[5] Further, the Agreement passed its nominal expiry date on 20 October 2018. Having regard to the fact that the Agreement has passed its nominal expiry date, that the Agreement has been replaced with a subsequent agreement, and that there are no longer any employees who are covered by the Agreement, it follows that the Agreement is no longer relevant.

[6] On 22 September 2020, Mr Jason Stubbings, an employee representative involved in bargaining process for the Applicant’s recently negotiated new enterprise agreement, filed a statutory declaration which confirms that all employees covered by the Agreement are now covered by the new agreement. The statutory declaration further states that ‘no employees who were covered under the previous agreement will be worse off under the new agreement’ and that he agrees with terminating the Agreement.

[7] Having regard to the materials lodged in support of the application and the submissions of the parties, I am satisfied that it is not contrary to the public interest to terminate the agreement. The agreement has passed its nominal expiry date, there are no employees covered by the agreement and a replacement agreement has been made.

[8] Pursuant to s.225 of the FW Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will operate from 25 September 2020.

COMMISSIONER

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