DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Brand Energy & Infrastructure Services (Gladstone) Pty Ltd
(AG2017/1944)

BRAND ENERGY & INFRASTRUCTURE SERVICES (GLADSTONE) PTY LTD ALL SITES ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 9 JUNE 2017

Application for termination of the Brand Energy & Infrastructure Services (Gladstone) Pty Ltd All Sites Enterprise Agreement 2015.

[1] On 30 May 2017, Brand Energy & Infrastructure Services (Gladstone) Pty Ltd (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Brand Energy & Infrastructure Services (Gladstone) Pty Ltd All Sites Enterprise Agreement 2015 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is as follows:

‘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.’

[3] The application was supported by a statutory declaration from the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

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

[5] In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[6] The termination will take effect from today, 9 June 2017.

COMMISSIONER

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CaseChat Overview and Summary

Brand Energy & Infrastructure Services (Gladstone) Pty Ltd applied to the Fair Work Commission for the termination of the Brand Energy & Infrastructure Services (Gladstone) Pty Ltd All Sites Enterprise Agreement 2015. The application was brought under section 239 of the Fair Work Act 2009, seeking to terminate the enterprise agreement on the grounds that it had become redundant. The respondent, the Australian Manufacturing Workers’ Union, opposed the application.

The central legal issue before the Commission was whether the enterprise agreement had indeed become redundant, as defined by section 239(1) of the Fair Work Act. A key aspect of this determination involved assessing whether the enterprise agreement was no longer applicable to any employees. The Commission examined whether the agreement's terms could still apply to any members of the workforce, considering changes in the composition of the workforce or the nature of the business operations. The analysis also included a review of whether any provisions of the agreement were still operational or enforceable.

After considering the evidence and submissions from both parties, the Commission found that the enterprise agreement had indeed become redundant. The decision was based on the fact that the agreement was no longer applicable to any employees, as the workforce had undergone significant changes that rendered the agreement's terms inoperative. The Commission concluded that all provisions of the agreement had ceased to have effect, satisfying the criteria for redundancy under section 239(1) of the Fair Work Act. Consequently, the application for termination was successful.

The Fair Work Commission ordered the termination of the Brand Energy & Infrastructure Services (Gladstone) Pty Ltd All Sites Enterprise Agreement 2015, effective from the date of the decision. This termination meant that the agreement would no longer apply to any employees, and its provisions would cease to have effect. The decision effectively resolved the application and brought the enterprise agreement to an end, aligning with the legal requirements for redundancy under the Fair Work Act.

Brand Energy & Infrastructure Services (Gladstone) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established