Haz-Elec Industries Pty Ltd T/A Haz-Elec Industries Pty Ltd [2022] FWCA 2432 (20 July 2022)

Last Updated: 1 August 2022

[2022] FWCA 2432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement
Haz-Elec Industries Pty Ltd T/A Haz-Elec Industries Pty Ltd

(AG2022/1767)

HAZ-ELEC ENTERPRISE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 20 JULY 2022

Application for termination of the Haz-Elec Enterprise Agreement 2009

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Haz-Elec Industries Pty Ltd T/A Haz-Elec Industries Pty Ltd (the Applicant) to terminate the Haz-Elec Enterprise Agreement 2009 (the Agreement).

[2] The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement is 11 November 2013.

[3] Sections 225 and 226 of the Act provide:

“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;

(c) an employee organisation covered by the agreement.

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.”

Consideration

[4] The Applicant is an employer covered by the Agreement and thus has standing to make the termination application.

[5] The Agreement does not cover any employee organisations.

[6] Mr Callum Payne, General Manager of the Applicant, filed a Form 24C Statutory Declaration in support of the Application. Mr Payne stated that the Application was made on the basis that the Agreement’s nominal expiry was more than eight years prior, and an employee spokesperson had requested the Agreement be terminated.

[7] Mr Payne, in his statement, also set out that a vote was held on whether to terminate the Agreement. Of the 32 clerical and electrical employees eligible to vote, all 32 voted in favour to terminate the Agreement.

[8] In a further statement, Mr Payne submitted that the Applicant was unaware of any issue that would indicate it would be contrary to the public interest to terminate the Agreement.

[9] Mr Payne stated, in a response to further inquiries, that each employee was advised in writing that the relevant Award (being either the Electrical, Electronic and Communications Contracting Award 2020 and the Clerks – Private Sector Award 2020) would apply to their employment when the Agreement was terminated. He provided the direct correspondence sent to each employee confirming that, further to the matters set out in each of the contracts of employment, the contract of employment is to be read in conjunction with the relevant Award, and where the contract of employment is silent in terms of the Award, the Awards provisions applied. The applicable pay rates exceed the rates provided for in the relevant Award.

[10] Taking into account the information provided in response to the matters in s.226 of the Act, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from today.

[11] I Order accordingly.

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