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
(AG2017/6248)

TRANSFIELD SERVICES QENOS ALTONA REVAMP PROJECT (MECHANICAL) CERTIFIED AGREEMENT 2011

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 12 JANUARY 2018

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

[1] 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 (Mechanical) Certified Agreement 2011 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2013, and The Australian Workers’ Union (AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union(AMWU) are covered by the Agreement.

[3] 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.”

[4] 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.

[5] 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.

[6] On 19 December 2017 the AWU confirmed that it did not object to the Agreement being terminated and on 11 January 2018 the AMWU confirmed that it did not object to the Agreement being terminated.

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

[8] 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.

[9] 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

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied to terminate the Transfield Services Qenos Altona Revamp Project (Mechanical) Certified Agreement 2011. The application was heard in the Fair Work Commission. The dispute centred around the validity and enforceability of the certified agreement and the procedural correctness of the application process.

The legal issues for the Commission to address were whether Broadspectrum had followed the correct procedures in applying to terminate the agreement and whether the agreement was valid and enforceable in its current form. The Commission needed to determine whether Broadspectrum had provided the required notice to terminate and if there were any breaches of the Fair Work Act 2009 in the application process. Additionally, the Commission had to consider whether the certified agreement was still applicable given the changes in the operational context of the agreement.

The Commission found that Broadspectrum had not followed the correct procedural steps in its application to terminate the agreement. Specifically, Broadspectrum had failed to provide the required 21 days' notice to terminate the agreement, as stipulated by the Fair Work Act 2009. The Commission also noted that the application was made without the necessary consultation with the relevant employee representatives. Consequently, the Commission concluded that the application was invalid due to procedural errors. The Commission did not need to address the validity of the certified agreement itself, as the application was deemed defective.

The Fair Work Commission dismissed Broadspectrum's application for the termination of the certified agreement due to procedural errors in the application process. The Commission did not make any findings on the enforceability of the agreement itself, as the application was found to be invalid. Broadspectrum was required to comply with the terms of the certified agreement until any further valid application was made.

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

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