Broadspectrum (Australia) Pty Limited

[2023] FWCA 2462

[2023] FWCA 2462

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Broadspectrum (Australia) Pty Limited

(AG2023/2539)

BROADSPECTRUM GIPPSLAND WATER MECHANICAL MAINTENANCE ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT BELL	MELBOURNE, 14 AUGUST 2023

Application for termination of the Broadspectrum Gippsland Water Mechanical Maintenance Enterprise Agreement 2019 – no employees – agreement terminated.

1. Broadspectrum (Australia) Pty Limited (Applicant) has applied, pursuant to s 225 of the Fair Work Act 2009 (the Act), to terminate the Broadspectrum Gippsland Water Mechanical Maintenance Enterprise Agreement 2019[1] (the Agreement).

1. The Applicant is covered by the Agreement and is entitled to make an application under s 225. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is covered by the Agreement and was copied into the application filed by the Applicant. The Agreement reached its nominal expiry date on 14 June 2023.

1. Section 225 of the Act provides 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.”

1. Section 226 of the Act relevantly provides as follows:

“226      Terminating an enterprise agreement after its nominal expiry date

(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

…

(b)       the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

…

(1A) However, the FWC  must  terminate  the  enterprise  agreement  under  subsection (1) only if the FWC is satisfied that it is appropriate in all the  circumstances to do so.

(2)       …

(3)       In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)       the employees (unless there are no employees covered by the agreement);

(b)       each employer;

(c)       each employee organisation (if any).

(4)       In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)       whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)       whether bargaining for the proposed enterprise agreement is occurring; and

(c)       whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)       In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. Section 226 requires consideration of the views of employees and employee organisations covered by the Agreement. The Form F24C Declaration, dated 27 July 2023 and filed on behalf of the Applicant, states there are no longer any employees covered by the Agreement, that the Agreement has no present (or future) operation, and the termination will have no effect on the Applicant and no effect on employees.

1. On 4 August 2023, the Commission sought the views of the AMWU in relation to the application and supporting material. In correspondence to my chambers on 7 August 2023, the AMWU advised that it was instructed that no employees are currently engaged under the Agreement and that the AMWU’s position is that it neither supports nor objects to the application. The employer supports the termination. I have considered these views. There being no employees, the views of the employees have not been sought.

1. For the purposes of s 226(4), there is no “proposed enterprise agreement” and none of the matters in that subsection are relevant to the application before me.

1. Based on the material before me, including that contained in the employer Declaration filed with the application, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of s 226(1)(b) is met. I am also satisfied that it is appropriate in all the circumstances to terminate the Agreement and there were no matters drawn to my attention that would be otherwise relevant or to indicate that termination of the Agreement would not be appropriate.

1. Having regard to the above findings, I now terminate the Agreement. The termination will operate from 14 August 2023.

DEPUTY PRESIDENT

[1] AE503934

Printed by authority of the Commonwealth Government Printer

<AE503934  PR764984>