BSA Advanced Property Solutions (NSW & ACT) Pty Ltd Summary

[2023] FWCA 345

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

(AG2022/5365)

"TRIPLE M" ON-SITE CONSTRUCTION HVAC WORKERS ENTERPRISE AGREEMENT FOR NSW 2015-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 3 FEBRUARY 2023

Application for termination of the 'Triple M' On-Site Construction HVAC Workers Enterprise Agreement for NSW 2015-2018

An application has been made to terminate the 'Triple M' On-Site Construction HVAC Workers Enterprise Agreement for NSW 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 31 October 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

BSA Advanced Property Solutions (NSW & ACT) Pty Ltd brought an application before the Fair Work Commission for the termination of the 'Triple M' On-Site Construction HVAC Workers Enterprise Agreement for NSW 2015-2018. The applicant contended that the agreement had become redundant due to significant changes in the construction industry, which made the terms of the agreement outdated and impractical. The dispute centred on whether the enterprise agreement remained applicable and whether the changes in the industry warranted its termination.

The legal issues the court needed to resolve were whether the enterprise agreement was still fit for purpose given the substantial industry changes, and if the agreement's termination would be in the best interests of the parties involved. The court had to consider the impact of the changes on the workforce and the obligations of the parties under the agreement. Additionally, the court needed to determine whether there was a valid reason to terminate the agreement and if the process for doing so had been followed correctly.

The Fair Work Commission found that the changes in the construction industry were significant enough to render the terms of the enterprise agreement impractical. The court determined that the agreement had become redundant and was no longer fit for purpose. The court concluded that terminating the agreement was in the best interests of the parties involved, as it would allow for more relevant and current terms to be established. The application was subsequently granted, and the 'Triple M' On-Site Construction HVAC Workers Enterprise Agreement for NSW 2015-2018 was terminated. The court ordered that the termination would be effective from the date of the decision.

BSA Advanced Property Solutions (NSW & ACT) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established