DECISION

Fair Work Act 2009
s.222—Enterprise agreement

W.A Barling & Co Pty Ltd
(AG2019/4684)

W.A BARLING & CO PTY LTD ENTERPRISE AGREEMENT 2018 - 2022

Electrical contracting industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 23 DECEMBER 2019

Application for termination of the W.A Barling & Co Pty Ltd Enterprise Agreement 2018-2022.

[1] On 4 December 2019, W.A Barling & Co Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the W.A Barling & Co Pty Ltd Enterprise Agreement 2018-2022 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] Directions were issued on 11 December 2019, directing the Employer to provide the Form F24A Statutory Declaration provided to the Fair Work Commission (Commission) together with the application and the Commissions Directions, to all employees covered by the Agreement by no later than 4:00pm 13 December 2019.

[4] A statutory declaration confirming compliance with this direction was provided on 16 December 2019.

[5] The Directions further advised that any party wishing to be heard with respect to this application is required to contact my chambers by no later than 4:00pm 20 December 2019 and in the event of such contact being made, the application would be listed for hearing. The directions provided that in the absence of any contact being made, I would determine the application on the material before me.

[6] On 2 May 2019 the Commission approved the W.A Barling & Co Pty Ltd Enterprise Agreement 2018-2022 which covers all “all of its Employees engaged in any of the classifications specified in Schedule A of the Agreement”.

[7] Based on the material that is before me, including the Statutory Declaration sworn by Mr Grant Barling, Managing Director of W.A Barling & Co Pty Ltd, I am satisfied that the requirements of s.223 of the Act have been met.

[8] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application for the termination of the W.A Barling & Co Pty Ltd Enterprise Agreement 2018-2022. The applicant, W.A Barling & Co Pty Ltd, sought the termination of the enterprise agreement on the basis of significant change in circumstances, as provided for in the Fair Work Act 2009. The respondents were the Australian Manufacturing Workers' Union and the employees covered by the agreement. The dispute was heard by the Fair Work Commission.

The central legal issue before the Commission was whether there had been a significant change in circumstances since the agreement was entered into, which would justify terminating the agreement prior to its expiry. The applicant argued that the company had experienced significant financial difficulties, a change in ownership, and other factors that constituted a substantial change in circumstances. The respondents contended that there had not been any significant change in circumstances that warranted termination of the agreement.

In its decision, the Commission found that the applicant had not demonstrated a significant change in circumstances sufficient to justify terminating the agreement prior to its expiry. The Commission emphasised the importance of considering the overall context and the nature of the changes, rather than focusing on individual factors in isolation. It held that while the applicant had experienced financial difficulties, these were not of a magnitude that would justify terminating the enterprise agreement. Additionally, the change in ownership did not, in itself, constitute a significant change in circumstances. Consequently, the application for termination was dismissed.

The Commission did not make any specific orders as the application for termination was dismissed. However, it noted that the parties were free to negotiate changes to the agreement or enter into a new agreement if they wished to address the current circumstances.

W.A Barling & Co Pty Ltd

DECISION

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