BSA Advanced Property Solutions (ESSENTIAL SERVICES) Pty Ltd

[2023] FWCA 321

[2023] FWCA 321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

BSA Advanced Property Solutions (ESSENTIAL SERVICES) Pty Ltd

(AG2022/5538)

TRIPLE 'M' MECHANICAL SERVICES (QLD) PTY LTD AND CEPU PLUMBING DIVISION MECHANICAL UNION COLLECTIVE AGREEMENT 2015 - 2019

Plumbing industry
COMMISSIONER SPENCER	BRISBANE, 3 FEBRUARY 2023

Application for termination of the Triple M Mechanical Services (QLD) Pty Ltd & CEPU Plumbing Division Mechanical Union Collective Agreement 2015-2019.

1. BSA Advanced Property Solutions (ESSENTIAL SERVICES) Pty Ltd (BSA) made an application for the termination of the Triple M Mechanical Services (QLD) Pty Ltd & CEPU Plumbing Division Mechanical Union Collective Agreement 2015-2019.[1] (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act).

1. The Agreement covered employees engaged to provide plumbing, heating, air conditioning, fire protection and maintenance services. The Applicant no longer employs any employee to perform work or services in a role that would be covered by the agreement and has no future intention to employee any persons in a classification in the Agreement.

2. Sections 225 of the Act, and 226 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide:

“225      Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)       one or more of the employers covered by the agreement;

(b)       an employee covered by the agreement;

(c)       an employee organisation covered by the agreement.

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. The application was accompanied by a F24C declaration completed by Ms Sarah Bosco (Head of People). Ms Bosco submits that the Agreement does not currently cover or apply to any employees. The Agreement covered employees engaged to provide plumbing, heating, air conditioning, fire protection and maintenance services however the Applicant no longer employs any employees to perform work or services in a role that would be covered by the Agreement and has no intention to employ any persons in a classification in the Agreement. The employer additionally submitted a Form 24D to ensure all steps had been complied with.

1. The employer has applied for the termination of the Agreement.

1. The application, declaration (Forms F24B and F24C), and the Form 24D were served on the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 19 December 2022 by the Applicant, and on 21 December 2022 by the Commission. The CEPU were invited to provide their views such as whether there are any employees covered by the Agreement, or that it is otherwise not appropriate to terminate the Agreement by 6 January 2023. A follow up email was sent on 9 January 2023 requesting that the CEPU provide any views. A response was received from the CEPU on 2 February 2023 stating that the Union accept the termination of the Agreement.

1. I am satisfied that the agreement does not, and is not likely to, cover any employees (per s.226(1)(b)) and that it must be terminated. I am also satisfied that none of the criteria in s.226(4) apply and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)).

1. The termination will operate from the date of this decision

COMMISSIONER

[1] AE419133

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