Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

[2019] FWCA 256

[2019] FWCA 256

FAIR WORK COMMISSION

DECISION

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

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2018/6874)

TRANSFIELD SERVICES LIMITED (QGC - GAS PLANTS, FLOWLINES, FACILITIES & INFRASTRUTURE CONSTRUCTION PROJECTS) ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 16 JANUARY 2019

Application for termination of the Transfield Services Limited (QGC - Gas Plants, Flowlines, Facilities & Infrastructure Construction Projects) Enterprise Agreement 2013

[1] On 10 December 2018 Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Transfield Services Limited (QGC - Gas Plants, Flowlines, Facilities & Infrastructure Construction Projects) Enterprise Agreement 2013 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Mr Stephen Patten, Employee Relations Manager of the Employer which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Australian Workers’ Union (AWU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the Australian Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), jointly (“the Unions”) are employee organisations covered by the Agreement.

[4] On 13 December 2018, my Associate wrote to the Unions to seek their views respecting the application to terminate the Agreement, by no later than 19 December 2018. On 19 December 2018, Mr Benjamin Fullarton of the AWU advised that the AWU does not oppose the termination of the Agreement.

[5] On 8 January 2019, my Associate again wrote to the Unions and noted that neither the AMWU nor CEPU had provided their views on the application to terminate the Agreement. The AMWU and CEPU were given a further opportunity to provide their views on the application to terminate the Agreement, until no later than 14 January 2019. On 14 January 2019, Mr Kegan Scherf of the AMWU advised that the AMWU does not oppose the termination of the Agreement. No correspondence from the CEPU providing its views on the application to terminate the Agreement was received by my chambers by 14 January 2019.

[6] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[7] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[10] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect from today, 16 January 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE892307  PR703898>