Broadspectrum (Australia) Pty Ltd T/A Broadspectrum Summary

[2018] FWCA 268

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

(AG2017/6254)

Transfield Services Qenos Altona Revamp Project (Crane) Certified Agreement 2011

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 15 JANUARY 2018

Application for termination of the Transfield Services Qenos Altona Revamp Project (Crane) Certified Agreement 2011.

On 13 December 2017 Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (the Applicant) lodged an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Transfield Services Qenos Altona Revamp Project (Crane) Certified Agreement 2011 (the Agreement).

The Agreement has a nominal expiry date of 30 June 2013, and the Construction, Forestry, Mining and Energy Union (CFMEU) is covered by the Agreement.

Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act 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.”

On 19 December 2017 the Commission sought the views of the parties covered by the Agreement in relation to the application to terminate the Agreement.

I have considered the views of the employer who is covered by the Agreement and their circumstances, including that the termination of the Agreement will reduce its administrative regulatory burden.

On 12 January 2018 the CFMEU confirmed that it did not object to the Agreement being terminated.

I am satisfied that there are no employees covered by the Agreement.

On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

In accordance with section 227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied for the termination of the Transfield Services Qenos Altona Revamp Project (Crane) Certified Agreement 2011. The application was made under section 240 of the Fair Work Act 2009. The application arose out of a dispute between Broadspectrum and the Transport Workers Union of Australia regarding the terms of the certified agreement. The Fair Work Commission was tasked with determining whether the certified agreement should be terminated.

The legal issues before the court were whether the certified agreement had become ineffective and, if so, whether termination was in the national interest. The court had to consider the evidence presented by both parties, including the nature of the certified agreement, the changes in the work environment, and the impact of the agreement on the parties involved. The court also had to assess whether termination of the agreement would result in a worse outcome for the employees than if the agreement remained in place.

The court found that the certified agreement had indeed become ineffective due to the changes in the work environment and the fact that the agreement was no longer fit for purpose. The court further found that termination of the agreement was in the national interest as it would allow for a more effective and efficient work environment. The court also considered the impact on the employees and concluded that termination would not result in a worse outcome for them. The court therefore granted the application and terminated the certified agreement. The decision was made in the interests of fairness and the national interest, with the court taking into account all relevant factors.

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established