Application for termination of the Proboards Pty Ltd T/A Willpower Mechanical Electrical and ETU Enterprise Agreement 2018-2021

[1] Proboards Pty Ltd (applicant) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Proboards Pty Ltd T/A Willpower Mechanical Electrical and ETU Enterprise Agreement 2018-2021 (Agreement). The Agreement is expressed to cover the applicant and its employees who are covered by the classifications in the Agreement, it also covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Agreement reached its nominal expiry date on 31 March 2021.

[2] Section 225 of the Act provides that, if an enterprise agreement has passed its nominal expiry date, any of the following may apply to the Commission for the termination of the agreement: one or more of the employers covered by the agreement; an employee covered by the agreement; or an employee organisation covered by the agreement.

[3] Section 226 of the Act states that, if an application is made under s 225, the Commission must terminate the agreement if any of the requirements of ss 226(1)(a), (b) or (c) is met. Relevantly in this case, the requirement of clause 226(1)(b) will be made out if the Commission is satisfied that the agreement does not, and is not likely to, cover any employees.

[4] Section 226(1A) provides that the Commission must terminate an agreement under s 226(1) only if it is satisfied that it is appropriate in all the circumstances to do so.

[5] Section 226(3) states that, in deciding whether to terminate the agreement, the Commission must consider the views of any employees covered by the agreement, each employer, and each employee organisation.

[6] Section 226(4) requires the Commission to have regard to whether the application was made at or after the notification time for a proposed enterprise that will cover the same or substantially the same group of employees as the existing agreement; whether bargaining for the proposed enterprise agreement is occurring; and whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

[7] Section 226(5) provides that in deciding whether to terminate the agreement, the Commission may also have regard to any other relevant matter.

[8] The company's F24C declaration, signed by Shane Van Reymersdael, the company's director, states that there are no employees who are covered, or who are likely to be covered, by the Agreement. Mr Van Reymersdael advised the Commission that all employees previously covered by the agreement had transferred to a different group entity which has its own enterprise agreement.

[9] The CEPU has advised the Commission that it does not oppose the application.

[10] Based on the material before the Commission, including the declaration of Mr Van Reymersdael, I am satisfied that the Agreement does, and is not likely to, cover any employees, and that the requirement of s 226(1)(b) is therefore met.

[11] In connection with s 226(3), the view of the employer is that the Agreement should be terminated. The view of the CEPU is that it does not oppose the application. There are no employees covered by the Agreement.

[12] None of the circumstances referred to in s 226(4) are present in this case. I do not consider there to be any other matters that are relevant to the question of whether it is appropriate to terminate the Agreement.

[13] I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from the date of this decision.

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