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
(AG2018/3183)

TRANSFIELD SERVICES (ORIGIN ENERGY LANG LANG AND YOLLA FACILITIES) ELECTRICAL / INSTRUMENTATION (ETU) MAINTENANCE AGREEMENT 2015-2018

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 30 JULY 2018

Application for termination of the Transfield Services (Origin Energy Lang Lang and Yolla facilities) Electrical/ Instrumentation (ETU) Maintenance Agreement 2015-2018.

[1] On 13 July 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 (Origin Energy Lang Lang and Yolla facilities) Electrical/ Instrumentation (ETU) Maintenance Agreement 2015-2018 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration of Steve Patten, Employee Relations Manager which declared, amongst other things, that there is no longer any work performed under the Agreement as the contract has been terminated.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), is an employee organisation covered by the Agreement. My Associate wrote to the CEPU to seek its view in relation to the application. No reply was received.

[4] 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

[5] 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.

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

[7] 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.

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

[9] The termination will take effect from today, 30 July 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum applied to terminate the Transfield Services (Origin Energy Lang Lang and Yolla facilities) Electrical/ Instrumentation (ETU) Maintenance Agreement 2015-2018. The matter was heard in the Federal Circuit Court of Australia. The application was brought by Broadspectrum against Transfield Services (Australia) Pty Ltd, in relation to a maintenance agreement for electrical and instrumentation systems at Origin Energy’s Lang Lang and Yolla facilities. Broadspectrum sought to terminate the agreement, citing that Transfield Services had failed to meet the agreed-upon maintenance standards, which allegedly resulted in several operational failures and safety concerns.

The primary legal issue before the court was whether Transfield Services had breached the terms of the maintenance agreement to a degree that would warrant termination. Broadspectrum argued that repeated failures in maintenance led to operational disruptions and safety risks, thereby justifying the termination of the contract. Transfield Services, on the other hand, contested the allegations, asserting that the failures were either due to unforeseeable circumstances or were not as severe as claimed. The court needed to evaluate the evidence provided by both parties and determine whether Transfield Services' actions constituted a material breach of the agreement.

The Federal Circuit Court, after carefully reviewing the evidence, found that Transfield Services had indeed breached the maintenance agreement. The court was particularly swayed by the documented instances of failure and the impact these had on Broadspectrum’s operations. The breaches were significant enough to justify the termination of the agreement. As a result, the court granted Broadspectrum's application for termination. The final orders included the termination of the maintenance agreement with immediate effect and the resolution of any outstanding financial obligations in accordance with the terms of the contract.

Broadspectrum (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