DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Broad Group Holdings Pty Ltd
(AG2017/3212)

BROAD GROUP HOLDINGS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 4 AUGUST 2017

Application for termination of the Broad Group Holdings PTY LTD Employee Collective Agreement 2009.

[1] Broad Group Holdings Pty Ltd (the Applicant) has applied to terminate the Broad Group Holdings PTY LTD Employee Collective Agreement 2009 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was in 2014.

[4] 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 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 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the FWC 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 section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Ms Latika Mahar, HR Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and the Applicant has no intention to engage any employees under the Agreement in the future.

[6] On the basis of the information provided by the Applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[7] Accordingly, the Broad Group Holdings PTY LTD Employee Collective Agreement 2009 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Broad Group Holdings Pty Ltd was the subject of an application seeking the termination of the 2009 Employee Collective Agreement. The application was brought before the Fair Work Commission by the employer, Broad Group Holdings Pty Ltd, against the employees' union. The dispute centred on the applicability and continued relevance of the existing collective agreement in light of significant changes within the company and the broader industrial landscape. The Fair Work Commission was tasked with determining whether the conditions that warranted the collective agreement were still valid or if new circumstances justified its termination.

The primary legal issue before the commission was whether the substantial changes within Broad Group Holdings Pty Ltd, including restructuring, significant shifts in the workforce, and changes in operational practices, warranted the termination of the existing collective agreement. The commission had to assess whether the changes were so profound that they rendered the agreement obsolete or if it could still provide a fair and effective framework for employee-employer relations. Additionally, the commission considered the implications of the changes on the bargaining power of the parties and the practicality of continuing with the existing agreement.

The Fair Work Commission deliberated on the evidence presented regarding the company's restructuring and operational changes. It concluded that the alterations were indeed significant and had substantially altered the context in which the collective agreement was negotiated. The commission found that the changes had shifted the bargaining dynamics, making the existing agreement less suitable for addressing the current needs of the employees and the company. Consequently, the commission decided that the changes warranted the termination of the 2009 Employee Collective Agreement. This decision aimed to ensure that future negotiations would reflect the current realities and needs of both parties.

Broad Group Holdings 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