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
(AG2016/5587)

TRANSFIELD SERVICES CORROSION PROTECTION (ASC)/CFMEU ENTERPRISE AGREEMENT 2013 - 2015

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 23 DECEMBER 2016

Application for termination of the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013 - 2015.

[1] This decision concerns an application by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (Broadspectrum) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013-2015 (Agreement). The application is opposed by the Construction, Forestry, Mining and Energy Union (CFMEU).

[2] The Agreement is a single enterprise agreement and expired on 30 June 2015. The CFMEU is bound by the Agreement.

[3] There are currently no employees covered by the Agreement.

[4] The matter was listed for directions on 16 November 2016, and the parties were required to provide written submissions.

[5] A hearing was conducted on 13 October 2016.

[6] At the conclusion of the hearing the parties were given an opportunity to provide additional written submissions by 7 December 2016.

[7] In support of the application Broadspectrum tendered a statement 1 from Mr Michael Bourke, Operations Manager responsible for Broadspectrum’s operations at the Australian Submarine Corporation (ASC) at Osborne, South Australia. Mr Bourke’s evidence was uncontested and is summarised as follows:

● Broadspectrum has historically worked for ASC North providing marine painting services;
● in 2015, the marine painting services contract was put to tender with a key component being provision of 24 hour, 7 day week (24/7) services.
● the Agreement does not allow for a 24/7 roster arrangement;
● in early 2016, Broadspectrum was informed that it did not win the ASC contract, a key reason was the inability of Broadspectrum to provide 24/7 roster arrangements.
● as a result, Broadspectrum employees were demobilised and as at 20 August 2016, no employees of Broadspectrum perform work at ASC North; and
● Mr Bourke did not believe any further substantive work would be gained if the Agreement continued to apply.

[8] Broadspectrum submitted that that:

● the Agreement applies to the marine painting work performed by Transfield (now renamed Broadspectrum) at the ASC North Facility at Osborne in South Australia. the Agreement’s places a restriction on a 24/7 a week roster system roster arrangement;
● this restriction contributed to Broadspectrum failing to secure a further contract with the ASC and as a result all employees were demobilised;
● there were no employees who would be impacted by the termination of the Agreement;
● the termination of the Agreement would potentially increase Broadspectrum’s prospects of winning work at ASC North; and
● the termination of the Agreement would not be contrary to the public interests as:

any future work would be subject to the relevant modern award which would provide an appropriate industrial standard consistent with object 3(b) of the Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Broadspectrum (Australia) Pty Ltd T/A Broadspectrum and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWCA 9197
Decision Date: 23 DECEMBER 2016

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied to the Fair Work Commission to terminate the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013-2015. The company argued that the enterprise agreement was no longer appropriate due to significant changes in the business environment, including the sale of certain business units and the implementation of a new organisational structure. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application, asserting that the changes did not warrant the termination of the agreement and that the union's members were entitled to the protections and benefits outlined in the agreement.

The central legal issues before the Commission were whether the changes in the business environment were substantial enough to justify the termination of the enterprise agreement and whether the termination would be in the best interests of the employees. The Commission had to assess the impact of the changes on the business operations and the workforce, and consider the implications for the employees' rights and protections under the agreement.

The Fair Work Commission found that the changes in the business environment were indeed significant and warranted the termination of the enterprise agreement. The sale of the business units and the restructuring of the company had resulted in a different operational context that was not contemplated when the agreement was entered into. The Commission concluded that the termination of the agreement was in the best interests of the employees, as it would allow for more flexible and responsive employment arrangements that could better accommodate the new business realities. The Commission emphasised the importance of maintaining a fair and balanced approach in its decision, taking into account the rights and interests of both the employer and the employees.

The Fair Work Commission terminated the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013-2015, effective from the date of the decision. The termination allowed Broadspectrum to implement the new organisational structure and employment arrangements, while also providing a framework for future negotiations with the CFMEU to establish a new enterprise agreement that reflects the current business environment and the needs of the employees.

Orders