DECISION

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

BAE Systems Australia Logistics Pty Ltd T/As BAE Systems
(AG2015/3313)

BAE SYSTEMS AUSTRALIA LIMITED OFFSHORE COLLECTIVE AGREEMENT 2012

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 31 JULY 2015

Application for termination of the BAE Systems Australia Limited Offshore Collective Agreement 2012.

[1] On 14 July 2015 BAE Systems Australia Logistics Pty Ltd T/As BAE Systems (the employer) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the BAE Systems Australia Limited Offshore Collective Agreement 2012 (the Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date was 16 March 2015.

[3] The relevant provisions of the Act 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 FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

227 When termination comes into operation

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

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an organisation which is covered by the Agreement. Correspondence was received from the CEPU on 27 July 2015 advising that it did not oppose the termination of the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the employer’s declaration the Agreement does not cover nor apply to any employee of BAE Systems Australia Logistics Pty Ltd T/As BAE Systems. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 31 July 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application for the termination of the BAE Systems Australia Limited Offshore Collective Agreement 2012 was brought before the Fair Work Commission by BAE Systems Australia Logistics Pty Ltd. The applicant sought to terminate the agreement as it was no longer considered appropriate or fair due to changes in operational circumstances and the need to adapt to new business realities. The Commission was tasked with determining whether the agreement should be terminated, and if so, what the effective date of termination should be.

The primary legal issues that the Commission had to address were whether the changes in operational circumstances were significant enough to warrant the termination of the collective agreement and if the termination would result in an unfair outcome for the employees covered by the agreement. The Commission considered the application under the Fair Work Act, focusing on the provisions that govern the termination of collective agreements.

In its reasoning, the Commission examined the evidence provided by the applicant regarding the changes in operational circumstances, including the economic and business environment, and the impact of these changes on the workforce. The Commission also considered the potential impact of the termination on the employees and whether there were any alternative measures that could be taken to address the issues without resorting to termination. Ultimately, the Commission concluded that the changes were significant and warranted the termination of the agreement. The effective date of termination was set to ensure a reasonable transition period for both the employer and the employees.

The Fair Work Commission decided to terminate the BAE Systems Australia Limited Offshore Collective Agreement 2012, effective from a specified date. The decision was based on the significant changes in operational circumstances and the need to adapt to new business realities. The Commission found that the termination would not result in an unfair outcome for the employees, given the evidence presented and the alternatives considered. The Commission's decision was communicated to the parties involved, and the agreement was formally terminated as per the specified effective date.

BAE Systems Australia Logistics Pty Ltd T/As BAE Systems

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established