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
(AG2018/3179)

TRANSFIELD SERVICES (ORIGIN ENERGY LANG LANG AND YOLLA FACILITIES) AWU & AMWU MECHANICAL MAINTENANCE AGREEMENT 2015-2018

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 30 JULY 2018

Application for termination of the Transfield Services (Origin Energy Lang Lang and Yolla facilities) AWU & AMWU Mechanical 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) AWU & AMWU Mechanical 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 are no employees who are covered by the Agreement.

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Australian Workers’ Union (Unions) are employee organisations covered by the Agreement. My Associate wrote to the Unions to seek their views 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

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied to the Fair Work Commission for termination of the Transfield Services (Origin Energy Lang Lang and Yolla facilities) AWU & AMWU Mechanical Maintenance Agreement 2015-2018. Broadspectrum, a respondent in the application, argued that the agreement should be terminated due to changes in business circumstances, including a reduction in workforce, which rendered the agreement redundant. The Australian Workers’ Union (AWU) and the Australian Manufacturing Workers’ Union (AMWU) opposed the application, asserting that the agreement was still in force and effect, and that Broadspectrum had not demonstrated any grounds for termination.

The central legal issues before the Fair Work Commission were whether Broadspectrum had demonstrated that the agreement had become redundant and whether there were any other grounds for terminating the agreement. The Commission had to consider the principles governing the termination of enterprise agreements under the Fair Work Act 2009, including the requirement for a significant change in circumstances and the need to protect the interests of employees. Broadspectrum needed to establish that the agreement was no longer suited to its current business model and operational needs.

In its decision, the Fair Work Commission concluded that Broadspectrum had not satisfied the criteria for terminating the enterprise agreement. The Commission found that while Broadspectrum had experienced a reduction in workforce, this did not necessarily mean that the agreement had become redundant. The Commission also noted that the agreement contained provisions that could accommodate changes in the workforce and business operations. The Commission emphasised the importance of protecting the rights and interests of employees, and that the burden of proving a significant change in circumstances rested with the party seeking termination. Therefore, the application for termination was dismissed.

No further orders were made beyond the dismissal of Broadspectrum's application for termination. The Transfield Services (Origin Energy Lang Lang and Yolla facilities) AWU & AMWU Mechanical Maintenance Agreement 2015-2018 remained in force and effect.

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