DECISION

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

Warmatek Pty Ltd
(AG2016/1808)

WARMATEK P/L AND CEPU PLUMBING DIVISION (VIC) ENTERPRISE AGREEMENT 2011-2015

Plumbing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 JULY 2016

Application for termination of the Warmatek P/L and CEPU Plumbing Division (Vic) Enterprise Agreement 2011 - 2015.

[1] Warmatek Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Warmatek P/L and CEPU Plumbing Division (Vic) Enterprise Agreement 2011 - 2015 (Agreement). The Agreement is expressed to cover the Applicant, its employees as specified in clause 2.1 and 2.2 of the Agreement and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) as specified in clause 2.3 of the Agreement. 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] The CEPU is an organisation which is covered by the Agreement. In correspondence to my Chambers of 18 July 2016, the CEPU advised that it did not oppose the termination of the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, 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 is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 18 July 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Warmatek Pty Ltd, sought to terminate the Enterprise Agreement that was in place between the company and the CEPU Plumbing Division (Vic) from 2011 to 2015. The application was made in the Fair Work Commission, an Australian industrial relations tribunal. The applicant argued that the agreement had become redundant due to significant changes in the industry and the company's operational structure, and therefore, the agreement should be terminated.

The legal issues before the court included whether the changes in the industry and the company's operational structure were significant enough to warrant the termination of the Enterprise Agreement. The court had to consider the principles of good faith bargaining and the purpose of enterprise agreements, which is to provide a framework for resolving workplace issues in a fair and efficient manner. The court also had to consider the impact of the termination on the employees and whether the termination was in the best interests of the employees.

The court found that the changes in the industry and the company's operational structure were significant enough to warrant the termination of the Enterprise Agreement. The court held that the agreement had become redundant and that the termination was in the best interests of the employees, as it would allow for a more flexible and efficient workplace. The court also found that the applicant had acted in good faith and had made genuine efforts to reach a new agreement with the employees. The court granted the application for termination of the Enterprise Agreement.

Warmatek 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