Wormald Australia Pty Ltd T/A Wormald

[2018] FWCA 2608

[2018] FWCA 2608

FAIR WORK COMMISSION

DECISION

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

Wormald Australia Pty Ltd T/A Wormald
(AG2018/1419)

TYCO AUSTRALIA PTY LTD T/A WORMALD, SOUTH AUSTRALIA CONSTRUCTION SPRINKLER FITTERS ENTERPRISE AGREEMENT 2014-2016

Plumbing industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 11 MAY 2018

Application for termination of the Tyco Australia Pty Ltd t/a Wormald, South Australia Construction Sprinkler Fitters Enterprise Agreement 2014-2016

[1] On 11 April 2018, Wormald Australia Pty Ltd trading as Wormaldmade an application to terminate the Tyco Australia Pty Ltd t/a Wormald, South Australia Construction Sprinkler Fitters Enterprise Agreement 2014-2016 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] This matter was the subject of a hearing on 11 May 2018 at which time I heard from Phillip Darby, National Industrial Relations Manager, on behalf of the applicant employer, and Erin Hennessy of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[3] Notice of this hearing was provided to the CEPU being a bargaining representative for the Agreement and covered by it. The CEPU does not oppose the application.

[4] The applicant employer is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[5] The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 3 September 2014 1. It was approved to operate from 10 September 2014 with a nominal expiry date of 1 April 2016. It has now passed its nominal expiry date. The ground on which the application is made is that the Agreement is no longer compliant with the Building Code and as such, is inhibiting the Employer’s commercial operations.

[6] I have considered the information provided in the application and by Mr Darby pursuant to section 225 of the FW Act. This includes Statutory Declarations of Phillip Darby dated 11 April 2018 and 2 May 2018. I note that the statutory declaration of 11 April 2018 says as follows:

“5) Only one employee is currently employed under the current agreement although this employee only work a small portion on minor maintenance / service work covered by an alternative agreement of the worm aid business this is due to the limited construction work available.

6) The company has offered the existing employee an employment contract in excess of the current construction Enterprise agreement and this employee is considering the current offer.

…

If the agreement was to be terminated it would allow the company to seek major Federal Government service work within the Fire industry.

As the current expired agreement does not comply to the 2016 building code and is required to be extinguished or varied.”

[7] I further note that a copy of this application and notice of listing was posted on relevant noticeboards and made available to employees in accordance with Directions issued on 17 April 2018.

[8] I have considered the information provided in the application and by Mr Darby pursuant to section 225 of the FW Act. This includes the Statutory Declarations of Mr Darby dated 11 April 2018 and 2 May 2018. I am satisfied as to each of the matters contained in section 226 of the FW Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. Whilst one employee (and only one) is currently employed under the Agreement, I am satisfied on the submissions and evidence before me that appropriate arrangements have been taken to not disadvantage that employee with respect to their terms and conditions of employment. Accordingly, the Agreement is terminated.

[9] The termination will come into effect from 11.59pm on 11 May 2018. An Order to this effect will be issued.

DEPUTY PRESIDENT

 1   [2014] FWCA 6070

Printed by authority of the Commonwealth Government Printer

<AE409902  PR606949>