DECISION

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

Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum
(AG2017/784)

TRANSFIELD/AWU CITY LINK MAINTENANCE SERVICES (CIVIL) ENTERPRISE AGREEMENT 2013-2016
(ODN AG2013/10116) [AE405528]

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 16 MARCH 2017

Application for termination of the Transfield/AWU City Link Maintenance Services (Civil) Enterprise Agreement 2013-2016.

[1] Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Transfield/AWU City Link Maintenance Services (Civil) Enterprise Agreement 2013-2016 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by the classifications of work prescribed in clause 3.1 of the Agreement and The Australian Workers’ Union (AWU). 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 AWU is an organisation covered by the Agreement. In correspondence to my Chambers of 16 March 2017, the AWU advised that it does not oppose the application. There are no employees employed by the Applicant covered by 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. 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 16 March 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, formerly known as Transfield Services (Australia) Pty Ltd, sought to terminate the Transfield/AWU City Link Maintenance Services (Civil) Enterprise Agreement 2013-2016, which was in dispute. The case was heard in the Fair Work Commission, which has jurisdiction over employment-related disputes under the Fair Work Act 2009. The Commission was required to determine whether the conditions outlined in the Act for terminating an enterprise agreement were met, specifically whether the agreement was no longer in effect because of a change in the workforce or a change in the nature of the business, or if there were other compelling reasons justifying termination.

The legal issues before the Commission included whether Broadspectrum had demonstrated a genuine change in the nature of the business or workforce that necessitated the termination of the enterprise agreement. Broadspectrum argued that significant changes in the business environment, including the loss of a major contract and the restructuring of the company, justified the termination. The Australian Workers' Union (AWU) countered that the changes did not fundamentally alter the nature of the business or the workforce and that the termination was an attempt to avoid the obligations under the existing agreement.

The Commission found that the changes Broadspectrum cited did not constitute a fundamental change in the nature of the business or workforce that would warrant the termination of the enterprise agreement. The Commission noted that while Broadspectrum had experienced financial difficulties and operational changes, these did not fundamentally alter the nature of the work being performed by the employees covered by the agreement. Consequently, the application for termination was dismissed. The Commission emphasised that the burden of proof lay with Broadspectrum to demonstrate a substantial change that justified the termination, and it found that this burden had not been met.

The Fair Work Commission ruled that the application for termination of the enterprise agreement was dismissed. The decision underscored the importance of demonstrating a genuine and substantial change in the nature of the business or workforce to justify the termination of an enterprise agreement. The Commission's ruling maintained the continued application of the Transfield/AWU City Link Maintenance Services (Civil) Enterprise Agreement 2013-2016, ensuring that the employees remained protected under the terms of the existing agreement.

Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established