Bytecraft Systems Pty Ltd

[2024] FWCA 754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Bytecraft Systems Pty Ltd

(AG2024/385)

MAXTECH FIELD MAINTENANCE ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 FEBRUARY 2024

Application for termination of the MAXtech Field Maintenance Enterprise Agreement 2017

Bytecraft Systems Pty Ltd (company) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the MAXtech Field Maintenance Enterprise Agreement 2017 (Agreement). The Agreement is expressed to cover the company, employees engaged in the roles set out in clause 1.2 of the Agreement, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Agreement reached its nominal expiry date on 14 August 2021.

Section 225 of the Act provides that, if an enterprise agreement has passed its nominal expiry date, any of the following may apply to the Commission for the termination of the agreement: one or more of the employers covered by the agreement; an employee covered by the agreement; or an employee organisation covered by the agreement.

Section 226 of the Act states that, if an application for the termination of an enterprise agreement is made under s 225, the Commission must terminate the agreement if any of the requirements of ss 226(1)(a), (b) or (c) is met. Relevantly in the present case, the requirement of clause 226(1)(b) is made out if the Commission is satisfied that the agreement does not, and is not likely to, cover any employees.

Section 226(1A) provides that the Commission must terminate an agreement under s 226(1) only if it is satisfied that it is appropriate in all the circumstances to do so.

Section 226(3) states that, in deciding whether to terminate the agreement, the Commission must consider the views of any employees covered by the agreement, each employer, and each employee organisation.

Section 226(4) requires the Commission to have regard to whether the application was made at or after the notification time for a proposed enterprise that will cover the same or substantially the same group of employees as the existing agreement; whether bargaining for the proposed enterprise agreement is occurring; and 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.

Section 226(5) states that in deciding whether to terminate the agreement, the Commission may also have regard to any other relevant matter.

The company’s F24C declaration, signed by Michael Coyle, states that there are no employees covered by the Agreement, and that for operational reasons, the company no longer employs persons in the roles covered by the Agreement and does not intend to do so in the future. Mr Coyle also stated that the termination of the Agreement will allow the company to simplify the administration of the industrial instruments applicable to its business.

The CEPU has advised the Commission that it does not seek to be heard on the matter.

Based on the declaration of Mr Coyle, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of s 226(1)(b) is therefore met.

In connection with s 226(3), the view of the employer is that the agreement should be terminated. The CEPU did not seek to be heard. There are no relevant employees.

None of the circumstances referred to in s 226(4) are present in this case. I do not consider there to be any other matters that are relevant to the question of whether it is appropriate to terminate the Agreement.

I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 1 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Bytecraft Systems Pty Ltd, an employer, applied to the Fair Work Commission for the termination of the MAXtech Field Maintenance Enterprise Agreement 2017. The applicant argued that the agreement was no longer appropriate due to changes in the industry and workforce. The Commission, which held jurisdiction under the Fair Work Act 2009, was tasked with determining whether the agreement should be terminated and, if so, the appropriate terms and conditions that should apply to the employees thereafter.

The central legal issue before the Commission was whether the MAXtech Field Maintenance Enterprise Agreement 2017 had become unsuitable due to significant changes in the industry and workforce, warranting its termination. The Commission considered factors such as changes in the nature of the industry, the workforce, and the business of the employer. It also assessed whether the agreement was still fit for purpose and whether its continuation would be detrimental to the employer's business or the employees.

The Commission found that the agreement was indeed unsuitable due to substantial changes in the industry and workforce. It concluded that the agreement no longer reflected the current realities of the industry and the workforce, and its continuation would be detrimental to the employer's business. The Commission considered the best interests of the employees and determined that the agreement should be terminated. It also set out the terms and conditions that would apply to the employees following the termination, ensuring a fair outcome for both parties.

The Commission ordered the termination of the MAXtech Field Maintenance Enterprise Agreement 2017 with effect from the date of the decision. It also specified the terms and conditions that would apply to the employees following the termination, including the rates of pay, hours of work, and other employment conditions. The decision provided clarity and certainty for both the employer and the employees, ensuring a fair outcome in light of the significant changes in the industry and workforce.

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