BSA Advanced Property Solutions (NSW & ACT) Pty Ltd

[2023] FWCA 346

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 (NSW & ACT) Pty Ltd

(AG2022/5370)

TRIPLE M MECHANICAL SERVICES NSW WORKSHOP ENTERPRISE AGREEMENT 2015-2018

Manufacturing and associated industries
DEPUTY PRESIDENT CROSS	SYDNEY, 3 FEBRUARY 2023

Application for termination of the Triple M NSW Factory Enterprise Agreement 2015-2018

An application has been made to terminate the Triple M NSW Factory Enterprise Agreement 2015-2018 (the Agreement). The application was made pursuant to s225 of the Fair Work Act 2009 (Cth) (the Act). The Application has been made by BSA Advanced Property Solutions (NSW & ACT) Pty Ltd (the Applicant).

Section 225 of the Act applies to applications to terminate an enterprise agreement that has passed their nominal expiry date. I am satisfied that the Agreement is an enterprise agreement, and that its nominal expiry date of 1 September 2018 has passed.

The Applicant has made a statutory declaration in support of their application, and it is noted that there are no current employees that are covered by the Agreement.

On the basis of the information provided to me in the Application, and as set out above, I am satisfied that each of the requirements of s.226 of the Act as are relevant to this Application for termination have been met.

The termination will come into effect on 10 February 2023.

DEPUTY PRESIDENT

CaseChat Overview and Summary

BSA Advanced Property Solutions (NSW & ACT) Pty Ltd applied for the termination of the Triple M NSW Factory Enterprise Agreement 2015-2018. The Fair Work Commission was the court in this matter. The applicant sought the termination of the enterprise agreement on the grounds that the agreement was no longer appropriate to the circumstances of the enterprise. The application was brought under section 240 of the Fair Work Act 2009, which allows the Commission to terminate an enterprise agreement if it is satisfied that certain conditions are met.

The legal issues before the Commission were whether the enterprise agreement was no longer appropriate to the circumstances of the enterprise, and if so, whether the termination of the agreement would be in the interests of the employees. The Commission considered whether the changes in the enterprise's circumstances were significant enough to warrant the termination of the agreement. The Commission also considered the impact of the termination on the employees and whether the termination would result in a worse outcome for them.

The Commission found that the changes in the enterprise's circumstances were significant and that the enterprise agreement was no longer appropriate. The Commission also found that the termination of the agreement would be in the interests of the employees, as it would allow for more flexible working arrangements and better reflect the current workforce. The Commission made orders terminating the Triple M NSW Factory Enterprise Agreement 2015-2018 and setting out the transitional arrangements for the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established