Application by Broadspectrum (Australia) Pty Ltd

[2024] FWC 2540

[2024] FWC 2540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Broadspectrum (Australia) Pty Ltd

(AG2024/3269)

BROADSPECTRUM (PAINTING & BLASTING SA) ENTERPRISE AGREEMENT 2020
(ODN AG2020/878) [AE507693]

DEPUTY PRESIDENT ANDERSON ADELAIDE, 17 SEPTEMBER 2024

Application for termination of the Broadspectrum (Painting & Blasting SA) Enterprise Agreement 2020

1. On 26 August 2024, Broadspectrum (Australia) Pty Ltd (via Ventia Australia Pty Limited, the parent company) (Broadspectrum, the employer or the applicant) applied under s 225 of the Fair Work Act 2009 (Cth) to terminate the Broadspectrum (Painting & Blasting SA) Enterprise Agreement 2020 (the Agreement).[1] The Agreement passed its nominal expiry date on 5 April 2024.

1. The application was supported by a Form F24C statutory declaration of Ms Eliza Maddock, Group Employee Relations Manager, dated 26 August 2024, which declared, amongst other things, that there are no employees covered or likely to be covered by the Agreement, and that no employee organisation is covered.

1. I issued directions on 29 August 2024 requiring Broadspectrum to serve the application on employees or employee organisation covered by the Agreement (if any) and provide a statement providing particulars of how it may be that employees are no longer covered. I also directed that any employee or employee organisation with an interest in the matter provide notice to the Commission by 12 September 2024.

1. In accordance with my directions, Broadspectrum filed a signed statement of Mr John Rogers, Executive General Manager Defence, dated 9 September 2024. Mr Rogers stated that:

• the relevant project (at the ASC Shipbuilding site at Osborne, South Australia) came to an end in or around 30 May 2021, following which the project was demobilised; and

• all employees covered by the Agreement and working on the project were made redundant with final redundancy payments made on 14 May 2021.

1. I heard the matter on 16 September 2024. Broadspectrum appeared. No employee interests did so.

1. During the hearing I heard further from Broadspectrum on the grounds on which the application is advanced. It was submitted that although the relevant project governing persons employed under the Agreement had ceased three years earlier (May 2021), Broadspectrum waited until the nominal date of the Agreement expired (April 2024) before making the termination application (August 2024). It could not make a s 225 application until the nominal expiry date has passed.

1. Being satisfied that I have all relevant material before me, I proceed to determine the matter.

Legislative provisions

1. The relevant provisions of the FW Act[2] are as follows:

“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     Terminating an enterprise agreement after its nominal expiry date

(1)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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)This subsection covers a termination of the employment of an employee:

(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)because of the insolvency or bankruptcy of the employer.

(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)the employees (unless there are no employees covered by the agreement);

(b)each employer;

(c)each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)whether bargaining for the proposed enterprise agreement is occurring; and

(c)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.

(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

227     When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

1. I am satisfied that Broadspectrum has standing to make this application as it is the employer covered by the Agreement.

1. The application is not contested. That is unsurprising as no persons have been employed under the Agreement for more than three years, and no employee organisations are covered by it.

1. As the application is not opposed, I am able to determine this matter. It is not required to be referred to the President for a full bench hearing under s 615A(3).

1. The Agreement covers:[3]

“Employees of Broadspectrum (Australia) Pty Ltd covered by the classifications in clause 23 of the Agreement who perform Painting & Blasting and associated maintenance services work at the ASC Shipbuilding and Techport facilities in Osborne, South Australia".

1. The ground on which termination is sought is s 226(1)(b), that the Agreement does not, and is not likely to, cover any employees.

1. The evidence clearly establishes this to be so. The Agreement was established for the purposes of project work at the Osborne shipbuilding site. As the project concluded more than three years ago after relevant redundancies were put into effect, there is no foreseeable prospect of further employment under the Agreement being likely.

1. Section 226(1)(b) is made out.

1. The considerations at s 226(2) and (4) do not apply.

1. I am satisfied that there are no other relevant matters to consider (s 226(5)).

1. It is appropriate in all the circumstances to terminate the Agreement (s 225(1A)).

Conclusion

1. Given the above, I am required to terminate the Agreement (s 226(1)).

1. The application to terminate the Broadspectrum (Painting & Blasting SA) Enterprise Agreement 2020 is approved.

1. There is no need for prospectivity. The termination will take immediate effect from 11.59pm on 17 September 2024, being the date of decision.

1. I issue an order[4] to this effect in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

A. Megerdichian, assisted by E. Maddock, both of and on behalf of Ventia Australia Pty Ltd.

Hearing details:

2024.
Adelaide (By Video);
16 September.

[1] [2020] FWCA 1828

[2] Schedule 1 Part 12 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (commencement 7 December 2022)

[3] Clause 2

[4] PR779330

Printed by authority of the Commonwealth Government Printer

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