BSA Advanced Property Solutions Australia Pty Ltd

[2022] FWCA 4553

[2022] FWCA 4553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

BSA Advanced Property Solutions Australia Pty Ltd

(AG2022/5367)

BurkeAir Pty Ltd Port Hedland Site Enterprise Agreement 2015

Electrical contracting industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 DECEMBER 2022

Application for termination of the Burkeair Pty Ltd Port Hedland Site Enterprise Agreement 2015

1. This decision concerns an application made by BSA Advanced Property Solutions Australia Pty Ltd (the Applicant) on 19 December 2022 for the termination of the Burkeair Pty Ltd Port Hedland Site Enterprise Agreement 2015[1] (the Agreement) made under s 225 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement passed its nominal expiry date on 30 June 2018. 

1. It is observed that the coverage of the Agreement extends to Burkeair Pty Ltd an entity that does not share the same name as the Applicant.  However, the Applicant explained, and provided evidence of the same, that on 20 April 2020, Burkeair Pty Ltd was renamed BSA Advanced Property Solutions Australia Pty Ltd.

1. Section 225 of the Act provides that an employer covered by an agreement can apply to the Commission for the termination of an agreement, if the agreement has passed its nominal expiry date. Evidently, given the nominal expiry date of the Agreement, the Applicant has standing.

1. Thereafter, the Commission is obliged to terminate the enterprise agreement if satisfied that the subsections of s 226 have been met. 

226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

1. In support of its application, the Applicant has provided a declaration from Ms Sarah Bosco.  Ms Bosco reports that there are no employees covered by the Agreement.  Ms Bosco stated that the Agreement covered employees engaged to provide refrigeration and air-conditioning services and that the Applicant no longer employed any employees to perform work or services who would be covered by the Agreement. 

1. According to Ms Bosco, the termination of the Agreement will not:

a) have any impact on the achievement or otherwise of the objective of the Act or on the objects of Part 2-4 of the Act;

b)   affect the maintenance of proper industrial standards as there are no employees covered by any of the Agreement;

c)   have any detrimental impact, or result in a shift in bargaining power, in relation to enterprise bargaining for the Applicant or a union; or

d)   have any detrimental impact on employment levels within the Applicant’s business.  The Applicant will not reduce labour hours offered, or employment levels generally, as a result of the termination.

1. It is noted that in all the circumstances, s 226A of the Act is not relevant.

Consideration

1. I am satisfied that the Agreement does not, and is not likely to, cover any employees and that it is appropriate in all the circumstances to terminate the Agreement.

1. The views of the Applicant have been considered and I accept Ms Bosco’s statement in her declaration that there are no employees covered by the Agreement. 

1. Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

[1] AE417716.

Printed by authority of the Commonwealth Government Printer

<AE417716  PR749182>