CBRE (GWSLA) Pty Ltd - [2024] FWCA 621

[2024] FWCA 621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

CBRE (GWSLA) Pty Ltd

(AG2024/162)

BSA ADVANCED PROPERTY SOLUTIONS (VIC) PTY LTD AND CEPU - PLUMBING DIVISION VICTORIAN BRANCH ENTERPRISE AGREEMENT 2020 - 2024

Plumbing industry
COMMISSIONER MIRABELLA	MELBOURNE, 1 MARCH 2024

Application for termination of the BSA Advanced Property Solutions (VIC) Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2020 - 2024.

An application was filed by CBRE (GWSLA) Pty Ltd (the Applicant) seeking the termination of the BSA Advanced Property Solutions (VIC) Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2020 - 2024[1] (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement has passed its nominal expiry date of 31 October 2023.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the PPTEU) is covered by the Agreement. Upon lodgement of the application on 30 January 2024, the Applicant served copies of the Form F24B application and the Form F24C statutory declaration made by Ms Briar Pilkinton on the PPTEU. On 7 February 2024, I caused an email to be sent to the PPTEU seeking their views regarding the proposed termination and requesting that any views be provided by 12 February 2024. To date, no response has been received from the PPTEU.

Legislation

Section 225 of the Act provides as follows:

“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.”

Sections 226 and 226A of the Act provide as follows:

“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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CBRE (GWSLA) Pty Ltd [2024] FWCA 621
Case: [2024] FWCA 621
Decision Date: 1 MARCH 2024

CaseChat Overview and Summary

The case involved an application by CBRE (GWSLA) Pty Ltd for the termination of the BSA Advanced Property Solutions (VIC) Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2020 - 2024. The application was heard by the Fair Work Commission, which was required to determine whether there were sufficient grounds for terminating the enterprise agreement under the Fair Work Act 2009. The dispute centred on whether the employer could demonstrate that there had been significant changes in circumstances that warranted the termination of the enterprise agreement, including changes in economic conditions, business operations, or the workforce.

The legal issues the Commission needed to address were whether the changes in circumstances were substantial enough to justify termination, and whether the employer had fulfilled its obligations under the Fair Work Act to negotiate in good faith. The Commission examined the evidence presented by both parties, including submissions and documentation, to assess the validity of the employer's claims. The employer argued that the significant downturn in the real estate and property management sectors, exacerbated by the COVID-19 pandemic, had fundamentally altered the business environment, making the existing agreement unworkable.

The Fair Work Commission found that the employer had not provided sufficient evidence to demonstrate that the changes in circumstances were so significant as to warrant termination of the enterprise agreement. The Commission emphasised the importance of maintaining stability in employment relationships and noted that the employer had not adequately shown that the changes were beyond their control or that they had made genuine efforts to negotiate changes through the established processes. As a result, the application for termination was dismissed. The Commission underscored the need for employers to carefully consider the implications of seeking to terminate an enterprise agreement and to ensure that any application is well-founded and supported by robust evidence.

Orders