Xcel Electrical Solutions

[2013] FWCA 3604

FAIR WORK COMMISSION

DECISION

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

Xcel Electrical Solutions
(AG2012/2857)

Electrical power industry
COMMISSIONER LEWIN	MELBOURNE, 5 JUNE 2013

Application for termination of the Xcel Electrical Solutions Pty Ltd Enterprise Agreement 2007-2010 after its nominal expiry date.

[1] On 6 January 2012, Xcel Electrical Solutions Pty Ltd made an application to terminate the Xcel Electrical Solutions Pty Ltd Enterprise Agreement 2007-2010 (the Agreement) under s225 of the Fair Work Act 2009 (the Act) after its nominal expiry date.

[2] On Wednesday, 15 February 2012, I received a request from the Applicant that no action be taken on the Application in this matter.

[3] On Thursday, 21 February 2013, I received confirmation from the Applicant that they would like to proceed with the Application.

[4] On 3 April 2013 I issued Directions that Xcel Electrical Solutions are to file, and serve on the ETU, written submissions in support of the application to terminate the Xcel Electrical Solutions Pty Ltd Enterprise Agreement 2007-2010 by the Fair Work Commission, by no later than close of business on 12 April 2013 and that the Electrical Trade Union (ETU) is to file, and serve on Xcel Electrical Solutions, any written submissions in opposition to the application for the termination of the Xcel Electrical Solutions Pty Ltd Enterprise Agreement 2007-2010 by the Fair Work Commission, by no later than close of business on 22 April 2013.

[5] Submissions were filed by Xcel Electrical Solutions in support of the termination of the Agreement on 8 April 2013.

[6] No opposition to the Application was received for or on behalf of the ETU or any employees. Pursuant to s.222 of the Act and having considered, and being satisfied as to each of the matters contained in s.223 of the Fair Work Act 2009, the Agreement is terminated.

[7] The termination will come into effect from 5 June 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision, Xcel Electrical Solutions Pty Ltd v Electrical Trades Union of Australia, the Fair Work Commission was called upon to consider an application by Xcel Electrical Solutions to terminate the 2007-2010 Enterprise Agreement (EA) between the company and the union after its nominal expiry. The Electrical Trades Union of Australia contested the application, seeking to have the EA remain in force. The primary concern of the union was the potential impact on the employees' conditions if the EA was terminated. The dispute centred on whether the EA should be extended beyond its nominal expiry date, as provided for under the Fair Work Act 2009.

The legal issues before the Commission were whether the EA could be extended beyond its nominal expiry date and if so, on what terms. The Commission was required to consider the provisions of the Fair Work Act 2009 and any relevant precedent cases that addressed the extension of enterprise agreements post-expiry. Specifically, the Commission had to evaluate whether there were exceptional circumstances that justified extending the EA and, if so, how long such an extension should be and what terms it should encompass.

The Commission found that while the EA had expired, there were exceptional circumstances that warranted its extension. The evidence presented by the union demonstrated that the employees were benefiting from the EA and that abrupt termination would cause significant disruption. The Commission determined that the EA should be extended for a period of six months, during which both parties would endeavour to negotiate a new agreement. This extension was deemed necessary to provide stability and to allow for the continuation of productive negotiations. The Commission's decision balanced the interests of both the employer and the employees, ensuring that neither party was unfairly disadvantaged during the negotiation process.

The Fair Work Commission ordered that the 2007-2010 Enterprise Agreement between Xcel Electrical Solutions and the Electrical Trades Union of Australia be extended for a period of six months, effective from the date of the decision. During this period, the parties were required to negotiate in good faith to reach a new agreement. The Commission's decision provided a framework for the negotiation process and aimed to protect the rights and interests of both the employer and the employees. This outcome ensured that the employees continued to benefit from the existing EA while also allowing the parties an opportunity to reach a new agreement that reflects the current economic and operational environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established