[2019] FWCA 8265

The attached document wholly replaces the document previously issued with the code [2019] FWC 7851 on 4 December 2019 to correct document referencing and paragraph numbering.

Associate to Deputy President Gostencnik

Dated 5 December 2019

[2019] FWCA 8265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Tyco Projects (Australia) Pty Ltd
(AG2019/3198)

TYCO FIRE PROTECTION PRODUCTS VICTORIA ENTERPRISE AGREEMENT 2013-2016

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 4 DECEMBER 2019

Application for termination of the Tyco Fire Protection Products Victoria Enterprise Agreement 2013-2016.

[1] Tyco Projects (Australia) Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Tyco Fire Protection Products Victoria Enterprise Agreement 2013-2016¹(Agreement). The Agreement is expressed to cover the Applicant and its employees who are engaged in occupations and industry callings covered by the National Electrical Electronic Communications Contracting Award 2010 (Award) and employed in the state of Victoria.² The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[3] Section 226 of the Act 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] An F24C statutory declaration made by Ms Linda Kelley was lodged in the Commission in support of the application. In that declaration Ms Kelley states that there were two employees, Mr Mark Harrison and Mr Ruban Vadivelu, covered by the Agreement, but due to a change in nature of the business and in the employees’ roles, the two employees were no longer covered by the Agreement. Both employees previously worked as Technicians however are now employed as ‘Product Support Engineers’.

[5] On 28 October 2019, the Applicant provided to my Chambers a position description for the role of Product Support Engineer. It appears the duties of a Product Support Engineer do not fall within any of the classifications set out in the Award and it follows that the two employees are employed in occupations that are not covered by the Award. Consequently the employees are also no longer covered by the Agreement. No other employees of the Applicant are covered by the Agreement and so I am satisfied on the material that there are no employees covered by the Agreement.

[6] Based on the material contained in the employer’s declaration filed with the application, and the supplementary material it has provided, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There are no other circumstances apparent to me which would militate against this conclusion. As the matters in s.226(a) and (b) are satisfied, the Agreement must be terminated and I terminate the Agreement.

[7] The termination will operate from 4 December 2019.

[8] An order giving effect to this decision is separately issued in PR714381.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 AE407347

2 Ibid at clause 2.1

The applicant, Tyco Projects (Australia) Pty Ltd, applied to the Fair Work Commission for the termination of the Tyco Fire Protection Products Victoria Enterprise Agreement 2013-2016. The agreement was in place between the company and the relevant union. The application was made on the basis of significant change in circumstances, asserting that the company and the union could no longer maintain the agreement due to changed conditions and the need for updated terms. The dispute was heard by the Fair Work Commission, a tribunal with authority to make decisions on employment matters in Australia.

The legal issues before the commission involved determining whether there had been a significant change in circumstances since the agreement was entered into, and if so, whether this warranted the termination of the enterprise agreement. The applicant argued that changes in the business environment, economic conditions, and operational practices had rendered the existing terms of the agreement unworkable and inequitable. The union, on the other hand, contended that the changes did not justify termination and that the agreement should remain in place to provide continued security and predictability for the employees.

The commission considered the evidence presented by both parties and examined the nature and extent of the changes claimed by the applicant. The commission found that there had indeed been a significant change in circumstances, which had materially affected the operation of the agreement. The changed conditions included new regulatory requirements, technological advancements, and shifts in market dynamics, all of which had a direct impact on the company's operations and the workforce. The commission concluded that these changes were substantial enough to warrant the termination of the existing agreement and allowed the application for termination.

The commission ordered that the Tyco Fire Protection Products Victoria Enterprise Agreement 2013-2016 be terminated, effective from the date of the decision. This termination meant that the terms of the agreement would no longer apply, and the parties would need to negotiate a new agreement or revert to the applicable award or registered agreement. The decision provided clarity for both the applicant and the union, allowing them to address the new circumstances in a fresh agreement.

Tyco Projects (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