DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Broadspectrum (Australia) Pty Limited
(AG2020/3296)

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 NOVEMBER 2020

Application for termination of the Broadspectrum Mobil Altona Building & Construction Enterprise Agreement 2016

[1] Broadspectrum (Australia) Pty Limited has applied under s 225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Broadspectrum Mobil Altona Building & Construction Enterprise Agreement 2016 (Agreement). The Agreement is expressed to cover the company and its employees “who are engaged to perform work at the Mobil Altona Refinery and its facilities at the Blending Area, North and South Crude Tank Farms, Gellibrand Dock and associated pipelines, Mobil Yarraville Terminal and associated piers” and who are employed in the classifications of work detailed in Schedule B of the Building and Construction General On-Site Award 2010. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is covered by the Agreement. The nominal expiry date of the Agreement was 30 June 2020.

[2] Section 225 of the Act provides:

“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.”

[3] Section 226 of the Act provides:

“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.”

[4] I listed the matter for mention on 18 November 2020. At the mention, the CFMMEU confirmed that it did not oppose the application. I directed the company to provide employees who are covered by the Agreement a copy of the application to terminate the Agreement and correspondence from my chambers advising employees that the Commission is required to consider the views of employees covered by the Agreement, and that employees could send to my chambers any views they may have about the application by 27 November 2020. No employees submitted views as to the application to terminate the Agreement.

[5] I note that the company recently filed in the Commission an application for approval of a new enterprise agreement, the Broadspectrum Mobil Altona Refinery Building and Construction Enterprise Agreement 2020 (2020 Agreement) which will substantially supersede the Agreement. Unlike the Agreement, the 2020 Agreement will not cover team leaders or coordinators. The company intends that the employment of these employees will be governed by staff salaried arrangements, consistent with the leadership nature of these positions. On 27 November 2020, Masson DP approved the 2020 Agreement, and it will commence operation on 4 December 2020. The CFMMEU will be covered by it. The company and the union have requested that the Commission specify, under s 227, that the termination of the Agreement operate from a day that is after the commencement of operation of the 2020 Agreement.

[6] 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. There is nothing before me which raises considerations that might militate against termination of the Agreement. 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 and I do so.

[7] The termination will operate from 5 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE428190 PR724907

Broadspectrum (Australia) Pty Limited applied for the termination of the Broadspectrum Mobil Altona Building & Construction Enterprise Agreement 2016. The applicant sought the termination on the grounds that the agreement had become redundant, primarily due to the absence of employees covered by the agreement. The dispute was heard by the Fair Work Commission (FWC).

The legal issues before the FWC were whether the enterprise agreement had indeed become redundant and if so, whether the appropriate remedy was the termination of the agreement. The primary focus was on whether there were employees who were still covered by the agreement and thus whether the agreement remained in force. The applicant argued that due to changes in the workforce and employment, the agreement no longer applied to any employees.

The FWC concluded that the enterprise agreement had become redundant as there were no longer any employees covered by it. The Commission reasoned that since the agreement was no longer applicable to any employees, it had effectively ceased to operate. The FWC determined that terminating the agreement was an appropriate remedy under the circumstances. Consequently, the FWC granted the application and terminated the enterprise agreement. The decision was made to ensure the legal framework remained aligned with the current employment realities.

Broadspectrum (Australia) Pty Limited

DECISION

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