DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Broadspectrum (Australia) Pty Ltd
(AG2016/1354)

TRANSFIELD SERVICES LIMITED (LYTTON REFINERY SHUTDOWNS/TURNAROUNDS AND/OR PROJECT WORK-QLD) ENTERPRISE AGREEMENT 2012-2015

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 31 MAY 2016

Application for termination of the Transfield Services Limited (Lytton Refinery Shutdowns/ Turnarounds and/or Project Work- QLD) Enterprise Agreement 2012-2015.

[1] Broadspectrum (Australia) Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Transfield Services Limited (Lytton Refinery Shutdowns/Turnarounds and/or Project Work –QLD) Enterprise Agreement 2012-2015 (Agreement). The Agreement is expressed to cover the Applicant, its employees engaged in classifications specified in the Agreement as described in clause 3.1.1 of the Agreement and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The AMWU is an organisation which is covered by the Agreement. In correspondence to my Chambers of 31 May 2016, the AMWU advised that it did not oppose the termination of the Agreement.

[5] 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. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 31 May 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Broadspectrum (Australia) Pty Ltd applied to terminate the Transfield Services Limited (Lytton Refinery Shutdowns/Turnarounds and/or Project Work- QLD) Enterprise Agreement 2012-2015. The applicant sought to terminate the enterprise agreement due to significant changes in the market and operational environment, which rendered the agreement no longer appropriate. The matter was heard by the Fair Work Commission (FWC).

The legal issues before the FWC were whether the changes in the market and operational environment were so significant that they warranted the termination of the enterprise agreement, and whether the applicant had met the threshold requirements for termination under the Fair Work Act 2009. The FWC needed to consider whether the changes were unforeseen and could not have reasonably been anticipated when the agreement was entered into, and whether the changes were so significant that the agreement could no longer be considered to be appropriate for the changed circumstances.

The FWC found that the changes in the market and operational environment were significant and could not have reasonably been anticipated when the agreement was entered into. The FWC considered that the changes were of such a nature that the agreement could no longer be considered to be appropriate for the changed circumstances. The FWC found that the applicant had met the threshold requirements for termination under the Fair Work Act 2009. The FWC therefore granted the application for termination of the enterprise agreement.

The FWC ordered that the enterprise agreement be terminated as of a specified date, and that the termination be backdated to the date of the FWC's decision. The FWC also ordered that the parties were to negotiate in good faith to reach a new enterprise agreement, and that if the parties were unable to reach agreement, either party could apply to the FWC for the making of an order determining the terms and conditions of employment.

Broadspectrum (Australia) Pty Ltd

DECISION

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