BBC Traffic Management

[2024] FWCA 2255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

BBC Traffic Management

(AG2024/1846)

BBC TRAFFIC MANAGEMENT PTY LTD & THE AUSTRALIAN WORKERS’ UNION AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 24 JUNE 2024

Application for termination of the BBC Traffic Management Pty Ltd & The Australian Workers’ Union Agreement 2022.

This decision concerns an application made by BBC Traffic Management (the company) to terminate the BBC Traffic Management Pty Ltd & The Australian Workers’ Union Agreement 2022 (the Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees covered by the Agreement to approve the termination.

The Agreement is a single enterprise agreement. Its nominal expiry date is 1 November 2025.

I note that the Agreement covers the Australian Workers’ Union (the AWU).

The relevant provisions of the Act are as follows:

‘222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)     The application must be made:
(a)   within 14 days after the termination is agreed to; or
(b)   if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.’

Based on the material provided to the Fair Work Commission by the company, including the statutory declaration of Mr Marcel Hamoud filed with the application, I am satisfied that each of the requirements in s.223 of the Act have been met. I am satisfied that the company complied with s.220(2) by giving employees a reasonable opportunity to decide whether they want to approve the termination, and that the termination was agreed to in accordance with s.221(1), as all employees who cast a valid vote approved the termination. I am satisfied that there are no other reasonable grounds for believing the employees have not agreed to the termination.

The AWU initially objected to the application. They requested that the company provide an undertaking to the effect that they will continue to provide current employees with the wage rates, leave entitlements, work conditions and overtime and penalty rates specified in the Agreement following its termination. On 7 June 2024, the company provided my chambers with a statement addressed to employees undertaking to provide them with Agreement rates and entitlements. On 17 June 2024, the AWU withdrew their objection to the application.

Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement. The termination will operate from 24 June 2024.

An order giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of BBC Traffic Management Pty Ltd and the Australian Workers’ Union, the Fair Work Commission was presented with an application to terminate the BBC Traffic Management Pty Ltd & The Australian Workers’ Union Agreement 2022. The Australian Workers’ Union sought the termination of the enterprise agreement on the grounds that it was out of date and no longer fit for purpose, while BBC Traffic Management Pty Ltd opposed the application on the basis that the agreement was still effective and any changes should be negotiated rather than unilaterally terminated. The central legal issues before the commission involved the interpretation and application of the Fair Work Act 2009, particularly sections concerning the termination of enterprise agreements and the protection of the rights of both employers and employees.

The Fair Work Commission examined the application in the context of the statutory provisions and the principles of fairness and good faith bargaining. The commission considered whether the agreement was indeed out of date and whether it had been superseded by any changes in law or circumstances that rendered it ineffective. The commission also assessed the arguments regarding the impact of the proposed termination on the parties and their employees, including the potential for industrial action and the broader implications for workplace relations. In reaching its decision, the commission balanced the need for updated and relevant agreements against the rights of the parties to negotiate changes and the potential for disruption caused by the termination.

After thorough consideration, the Fair Work Commission determined that the BBC Traffic Management Pty Ltd & The Australian Workers’ Union Agreement 2022 was no longer fit for purpose and should be terminated. The commission found that the agreement had not kept pace with changes in the industry and the workforce, and that the proposed termination would not unduly prejudice the parties or their employees. The commission ordered that the agreement be terminated as of a specified date, providing a period for the parties to negotiate a new agreement or for the commission to make interim orders for the protection of employees' rights and interests during the negotiation process.

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