BSA Limited

[2018] FWC 5990

[2018] FWC 5990

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16—Application to terminate collective agreement-based transitional instrument

Fair Work Act 2009

s.222—Enterprise agreement

BSA Limited
(AG2018/3635) (AG2018/3637) (AG2018/3638) (AG2018/3639) (AG2018/3640) (AG2018/3641)

COMPLEX AIRCONDITIONING PTY LTD AND CEPU ENTERPRISE AGREEMENT 1999-2002

(ODN AG2001/3695)[AG810343]

COMPLEX AIRCONDITIONING PTY LTD PLUMBING AND MECHANICAL SERVICES COLLECTIVE AGREEMENT FOR SYDNEY, WOLLONGONG, CENTRAL COAST, NEWCASTLE & NSW AREAS 2006 - 2008
[AC301840]

TRIPLE 'M' MECHANICAL SERVICES QUEENSLAND FACTORY ENTERPRISE AGREEMENT 2012 – 2015
(ODN AG2012/10855)[AE896703]

TRIPLE “M” MECHANICAL SERVICES (QLD) PTY LTD AND AUSTRALIAN MANUFACTURING WORKERS UNION COLLECTIVE AGREEMENT 2012
(ODN AG2012/7418)[AE895957]

BURKEAIR PTY LTD WHEATSTONE PROJECT AGREEMENT 2013
(ODN AG2013/490)[AE400635]

COMPLEX AIRCONDITIONING PTY LTD AND CEPU – PLUMBING DIVISION (VIC) BORDER ENTERPRISE AGREEMENT 2013-2016
(ODN AG2013/8610)[AE403375]

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 26 SEPTEMBER 2018

Application for termination of the agreements; Application by agent of employers covered by the agreements.

[1] On 7 August 2018, BSA Limited (the Applicant) in its capacity as agent for the various employers covered by certain collective agreement based transitional instruments applied to terminate four agreements pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act):

Agreement A Complex Airconditioning Pty Ltd and CEPU Enterprise Agreement 1999-2002;

Agreement B Complex Airconditioning Pty Ltd Plumbing and Mechanical Services Collective Agreement for Sydney, Wollongong, Central Coast, Newcastle & NSW Areas 2006 - 2008;

Agreement C Triple 'M' Mechanical Services Queensland Factory Enterprise Agreement 2012 - 2015; and

Agreement D Triple "M" Mechanical Services (Qld) Pty Ltd and Australian Manufacturing Workers Union Collective Agreement 2012 - 2015.

[2] The Applicant as agent for two employers covered by certain enterprise agreements also applied to terminate two agreements pursuant to s.225 of the Fair Work Act 2009 (the Act):

Agreement E BurkeAir Pty Ltd Wheatstone Project Agreement 2013; and

Agreement F Complex Airconditioning Pty Ltd and CEPU – Plumbing Division (VIC) Border Enterprise Agreement 2013-2016.

[3] The Applicant is the holding company of the employers covered by the six agreements (the Agreements). The three employers covered by the Agreements are:

1. Complex Airconditioning Pty Ltd (Agreements A, B & F);

2. Triple ‘M’ Mechanical Services (Qld) Pty Ltd (Agreements C & D); and

3. BurkeAir Pty Ltd (Agreement E).

[4] Unions are also covered by some of the Agreements:

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (Agreements A, B & F);

2. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Agreement D); and

3. The Australian Workers’ Union (AWU) (Agreement E).

Agreement A

[5] Agreement A covers Complex Airconditioning Pty Ltd, its employees and the CEPU as specified in clause 1.3 of the agreement. The agreement passed its nominal expiry date on 30 September 2002 as specified in clause 1.4 of the agreement. In correspondence with my Chambers on 10 September 2018, the CEPU advised it did not oppose the termination of the agreement.

Agreement B

[6] Agreement B covers Complex Airconditioning Pty Ltd, its employees and the CEPU as specified in clause 2 of the agreement. The agreement passed its nominal expiry date on 30 September 2008 as specified in clause 5 of the agreement. In correspondence with my Chambers on 10 September 2018, the CEPU advised it did not oppose the termination of the agreement.

Agreement C

[7] Agreement C covers Triple ‘M’ Mechanical Services (Qld) Pty Ltd and its employees as specified in clause 4 of the agreement. The agreement passed its nominal expiry date on 30 June 2015 as specified in clause 6 of the agreement.

Agreement D

[8] Agreement D covers Triple ‘M’ Mechanical Services (Qld) Pty Ltd, its employees and the AMWU as specified in clause 10 of the agreement. The agreement passed its nominal expiry date on 1 January 2016 as specified in clause 11 of the agreement. In correspondence with my Chambers on 30 August 2018, the AMWU advised it did not oppose the termination of the agreement.

Agreement E

[9] Agreement E covers BurkeAir Pty Ltd, its employees and the AWU as specified in clause 2 of the agreement. The agreement passed its nominal expiry date on 8 April 2017 as specified in clause 5 of the agreement. In correspondence with my Chambers on 10 September 2018, the AWU advised it did not oppose the termination of the agreement.

Agreement F

[10] Agreement F covers Complex Airconditioning Pty Ltd, its employees and the CEPU as specified in clause 2 of the agreement. The agreement passed its nominal expiry date on 30 September 2016 as specified in clause 3 of the agreement. In correspondence with my Chambers on 10 September 2018, the CEPU advised it did not oppose the termination of the agreement.

The Agreements

[11] Agreements A – D are each collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. The applications relating to Agreements E & F have been lodged pursuant to s.225 of the Act.

[12] Section 225 of theAct provides:

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.

[13] Section 226 of the Act provides:

226 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[14] Ms S Street, Divisional Manager, People, of the Applicant, provided a statutory declaration dated 3 August 2018, declaring that “the Applicant is holding [c]ompany and owner of the employer companies covered by the Agreements”. The statutory declaration states that the Agreements do not cover or apply to any employees and that there is no intention or prospect of any person being employed or covered under the Agreements in the future. Further, it declared that:

“The termination of the Agreements will not:

(a) have any impact on the achievement or otherwise of the objective of the Fair Work Act 2009 (Cth) (FW Act) or on the objects of Part 2-4 of the FW Act;

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

(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 Application will not reduce labour hours offered, or employment levels generally as a result of the termination.”

[15] Mr N Yates, Managing Director and Chief Executive Officer of the Applicant, provided a further affidavit declared on 20 August 2018, in which he deposed that the three employers named by the Agreements are “all companies that are ultimately wholly owned subsidiaries of BSA Limited”. Further, Mr Yates affirmed that he is a director of each of the three employers and that the applications were filed by the Applicant “in the capacity as the authorised agent for the [three] employers” covered by the Agreements.

[16] Based on the material contained in the statutory declaration of Ms Street and affidavit of Mr Yates of the Applicant, I am satisfied that termination of the Agreements is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreements. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreements. I am satisfied that it is appropriate to approve the termination of the Agreements, and I terminate the Agreements.

[17] The termination will operate from 26 September 2018.

[18] Orders giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

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