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
(AG2017/783)

TRANSFIELD SERVICES REGIONAL CIVIL MAINTENANCE VICTORIA COLLECTIVE AGREEMENT 2012

(ODN AG2012/8688) [AE898496]

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

Application for termination of the Transfield Services Regional Civil Maintenance Victoria Collective Agreement 2012.

[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 Services Regional Civil Maintenance Victoria Collective Agreement 2012 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by the classifications of work prescribed in clause 3 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 the termination of the Transfield Services Regional Civil Maintenance Victoria Collective Agreement 2012. The application was made to the Fair Work Commission, which was the appropriate forum for this type of employment dispute. The primary issue before the Commission was whether there had been a significant change in circumstances since the agreement was made that warranted its termination. Broadspectrum argued that the significant changes in the industry, including the downturn in the mining sector and the impact of technological advancements, necessitated a review and potential termination of the agreement to remain competitive and viable.

The Commission examined the evidence presented by both parties, considering the economic and operational factors affecting the industry. It assessed whether the changes were of such a magnitude that they fundamentally altered the bargaining position of the parties and rendered the existing agreement unworkable. The Commission also took into account the principles of good faith bargaining and the preservation of the collective bargaining process. After thorough deliberation, the Commission determined that while there had been changes in the industry, they did not constitute a fundamental shift that would justify terminating the agreement. Consequently, the application for termination was dismissed.

In its decision, the Commission emphasised the importance of maintaining stability and predictability in employment agreements, particularly in times of economic uncertainty. It highlighted that while employers must adapt to changing circumstances, the process of doing so should be conducted within the framework of existing agreements and through negotiation. The Commission's ruling underscored the principle that termination should not be lightly granted and that any changes to the agreement should ideally be negotiated between the parties. The decision was a reaffirmation of the Commission's commitment to protecting the rights of employees and the integrity of the collective bargaining process.

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