Broadspectrum (Australia) Pty Ltd

[2024] FWCA 938

[2024] FWCA 938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Broadspectrum (Australia) Pty Ltd

(AG2024/457)

BROADSPECTRUM MOBIL ALTONA REFINERY MECHANICAL CONSTRUCTION/MAINTENANCE ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 15 MARCH 2024

Application for termination of the Broadspectrum Mobil Altona Refinery Mechanical Construction/Maintenance Enterprise Agreement 2020

1. On 26 February 2024, Broadspectrum (Australia) Pty Ltd applied to terminate the Broadspectrum Mobil Altona Refinery Mechanical Construction/Maintenance Enterprise Agreement 2020 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act).

1. The Agreement has passed its nominal expiry date of 31 December 2023.

1. The Applicant is the sole employer covered by the Agreement. The Agreement covers employees who are engaged to perform work at the Mobil Altona Refinery (the Refinery) and its facilities at the Blending Area, North and South Crude Tank Farms, Gellibrand Dock and associated pipelines and associated piers and employed in the classifications or occupations set out in clause 2(b) of the Agreement. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers' Union (AWU) are the employee organisations covered by the Agreement.

1. The application was supported by a declaration of Alishan Megerdichian, Senior Legal Counsel - Employment, dated 26 February 2024. Mr Megerdichian declares that the Agreement nominally expired on 31 December 2023 and that there are no employees covered or likely to be covered by the Agreement.

Consideration

1. In relation to s.225 of the Act, I am satisfied that the Agreement has passed its nominal expiry date and that the Applicant is entitled to make the application as an employer covered by the Agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended s.226 of the Act. The amendments took effect from 7 December 2022 and provide 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:

(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or

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

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement

(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) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(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).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(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(1) of the Act requires that the Commission terminate an enterprise agreement that has passed its nominal expiry date if satisfied that any of the three grounds listed have been met. These relate to the continued operation of the agreement being unfair to employees, the agreement being unlikely to cover any employees, or the continued operation of the agreement posing a significant threat to the viability of the business. However, an additional consideration is whether the termination is appropriate. The Commission must terminate an enterprise agreement under s.226(1) only if satisfied that it is appropriate in all the circumstances to do so.[1]

1. The Applicant declares that the Agreement does not cover, and is not likely to cover, any employees. As such, I am satisfied that s.226(1)(b) has been met.

1. In accordance with s.226(3)(c) I must consider the views of any employee organisations covered by the Agreement. The views of the AMWU and AWU were sought. The AMWU advised that they had no objection to the termination of the Agreement. No response was received from the AWU.

1. On the material before the Commission, I am satisfied that none of the criteria in s.226(4) are relevant to this application.

1. Considering that there is no opposition to the application, and there are no employees covered by the Agreement, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.

1. In accordance with s.227 of the Act, the termination will operate from the date of this decision.

DEPUTY PRESIDENT

[1] Certis Security Australia (WA) Pty Limited [2023] FWCA 630 at [17].

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