DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wormald Australia Pty Ltd T/A Wormald
(AG2019/3725)

WORMALD AND CEPU - PLUMBING DIVISION (VIC) FIRE PROTECTION AGREEMENT VICTORIA 2012-2016

Plumbing industry
COMMISSIONER LEE	MELBOURNE, 20 DECEMBER 2019

Application for termination of the Wormald and CEPU - Plumbing Division (Vic) Fire Protection Enterprise Agreement Gippsland 2012-2016.

[1] An application has been made by Wormald Australia Pty Ltd T/A Wormald (the Applicant) to terminate the Wormald and CEPU – Plumbing Division (Vic) Fire Protection Enterprise Agreement Gippsland 2012-2016 (the Agreement) under section 225 of the Fair Work Act 2009 (the Act).

[2] The Agreement has a nominal expiry date of 31 March 2016.

[3] The matter for determination is whether or not to grant the application to terminate the Agreement.

Background to the application

[4] This application was lodged with the Fair Work Commission (the Commission) on 30 September 2019. The employer’s statutory declaration filed with the application contained information relevant to the views of the employer, the effect of the termination of the employer and employees and matters relevant to the public interest consideration.

[5] The statutory declaration was made by Mr Phillip Darby (National Industrial Relations Manager of the Applicant). Relevantly, Mr Darby stated in answer to Q2.1 and Q2.3 of the statutory declaration that the Agreement had passed its nominal expiry date, that no employees are working under the Agreement and that, subsequently, the termination of the Agreement will have no effect on the Applicant or its employees.

[6] The “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia” (CEPU) is covered by the Agreement. On 29 October 2019, my chambers wrote to the CEPU asking if they object or consent to the application. On 30 October 2019 Mr Steve Rocco (OH&S Officer of the Applicant) responded providing consent to the application for termination of the agreement.

The law to be applied

[7] 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;”

[8] 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.”

[9] The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s. 225(a) of the Act.

[10] In considering whether it is appropriate to terminate the Agreement, I have considered the views of the CEPU, an employee organisation covered by the Agreement. The CEPU do not oppose the termination of the Agreement. The CEPU did not contest the factual circumstances attested by Mr Darby. There are no employees covered by the Agreement and therefore, it is apparent that the termination will have no effect on employees pursuant to s. 226 (b)(ii) of the Act.

[11] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied that in accordance with s.226(a) of the Act, it is not contrary to the public interest to terminate the Agreement.

[12] Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act.

[13] I am satisfied that it is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

[14] The termination will come into effect from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Wormald Australia Pty Ltd, trading as Wormald, applied to the Fair Work Commission for the termination of the Fire Protection Enterprise Agreement Gippsland 2012-2016 between itself and the CEPU - Plumbing Division (Vic). The applicant sought termination on the basis that the agreement had not been able to be finalised, as required by the Fair Work Act 2009. The dispute was heard by the Commission, presided over by Deputy President L J Bennett.

The central legal issues before the Commission were whether the agreement could be terminated, and if so, whether it should be. The applicant argued that the agreement had not been finalised as required by the Act and that the agreement had not been in operation for a sufficient period to warrant its continuation. The Commission had to consider the relevant provisions of the Act and previous case law to determine if the application met the criteria for termination.

In considering the matter, the Commission noted that the agreement had not been finalised as required by section 234 of the Fair Work Act 2009. The Commission found that the applicant had made a genuine effort to reach a final agreement, but the parties were unable to resolve their differences. The Commission also found that the agreement had not been in operation for a sufficient period to establish a stable framework for industrial relations between the parties. The Commission concluded that the application met the criteria for termination and ordered the termination of the agreement. The termination took effect from the date of the decision.

The Commission ordered that the Fire Protection Enterprise Agreement Gippsland 2012-2016 be terminated, effective from the date of the decision. The termination was made pursuant to section 234(2) of the Fair Work Act 2009. The Commission's decision provided clarity for both parties, allowing them to move forward with their industrial relations arrangements without the constraints of the terminated agreement.

Wormald Australia Pty Ltd T/A Wormald

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established