CBRE (GWSLA) Pty Ltd
[2024] FWCA 621
•1 MARCH 2024
| [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 terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) 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.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
226A Guarantee of termination entitlements
Guarantee of termination entitlements
(1) A guarantee of termination entitlements is an undertaking given by an employer covered by an enterprise agreement that:
(a) is an undertaking that the employer will comply with subsection (3) if the agreement is terminated under section 226 and the employer terminates the employment of a protected employee for the termination of the agreement:
(i) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(ii) because of the insolvency or bankruptcy of the employer; and
(b) is in writing; and
(c) meets any requirements relating to the signing of undertakings that are prescribed by the regulations.
(2) A protected employee for a termination of an enterprise agreement under section 226 is an employee who would, but for the termination of the agreement, be covered by the agreement.
(3) For the purposes of paragraph (1)(a), the employer complies with this subsection, in relation to the termination of the protected employee’s employment, if the employer complies with the terms of the enterprise agreement that, if the agreement were still in operation, would have provided the employee with entitlements that:
(a) relate to a termination of the employee’s employment:
(i) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(ii) because of the insolvency or bankruptcy of the employer; and
(b) except if the employee was an award/agreement free employee immediately before the termination of the employee’s employment—are more beneficial than the entitlements under a modern award that covered the employee in relation to the employment at that time.
(4) A guarantee of termination entitlements given in relation to the termination of an enterprise agreement:
(a) comes into force on the day on which the termination of the agreement comes into operation under section 227; and
(b) ceases to be in force at the earliest of the following times:
(i) if the guarantee specifies a period during which the guarantee is to remain in force and the FWC approves that period under subsection (5)—the end of that period;
(ii) immediately before another enterprise agreement that covers the same, or substantially the same, group of employees as the terminated agreement comes into force;
(iii) the end of the period of 4 years beginning on the day the guarantee is given to the FWC.
(5) The FWC may, in its decision terminating an enterprise agreement, approve a period for the purposes of subparagraph (4)(b)(i) if it considers the period to be appropriate.
(6) An employer must comply with a guarantee of termination entitlements given by the employer to the FWC in relation to the termination of an enterprise agreement if:
(a) the agreement is terminated under section 226; and
(b) the employer terminates the employment of a protected employee for the termination of the agreement while the guarantee is in force:
(i) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(ii) because of the insolvency or bankruptcy of the employer.
Note: This subsection is a civil remedy provision (see Part 4-1)
(7) To avoid doubt, a guarantee of termination entitlements is a governing instrument for employment for the purposes of the Fair Entitlements Guarantee Act 2012.”
The Commission must be satisfied that the requirements in s.225, s.226 and s.226A of the Act are met prior to approving the termination of the Agreement.
Consideration
Section 225 of the Act
An employer covered by the Agreement may apply to the Commission under s.225(a) of the Act for termination of the Agreement if it has passed its nominal expiry date. As noted above, the Agreement nominally expired on 31 October 2023.
Further, I am satisfied that the Applicant is an employer covered by the Agreement. The Agreement is expressed to cover BSA Advanced Property Solutions (VIC) Pty Ltd. The Applicant advised in their Form F24B application that it acquired Advanced Property Solutions (VIC) Pty Ltd on 1 February 2023 and that through the acquisition, the Agreement was considered a transferring instrument under the definition of the Act and that transferring employees (of which there are now none) were moved to the consolidated entity, that being the Applicant. My chambers confirmed, via a search on the ASIC company database, that the former name of Advanced Property Solutions (VIC) Pty Ltd was BSA Advanced Property Solutions (VIC) Pty Ltd.
As such, I am satisfied that the Applicant has standing to bring the application under s.225(a) of the Act.
Section 226 of the Act
Section 226(1)(b) 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 it is satisfied that the agreement does not, and is not likely to, cover any employees. The Agreement binds the Applicant with respect to its employees engaged on-site or in construction work within the State of Victoria. In the Form F24C declaration, Ms Pilkinton has declared there are no employees covered by the Agreement and that the Applicant does not intend to recommence the construction work that the Agreement covers. On 19 February 2024, Ms Pilkinton further confirmed that the Applicant does not engage any workers performing work on-site that would fit the coverage of the Agreement.
However, s.226(1A) of the Act provides that the Commission must terminate the Agreement only if it is satisfied that it is appropriate in all the circumstances to do so, while s.226(5) of the Act outlines that the Commission may also have regard to any other relevant matters.
I consider the approach to assessing appropriateness laid out by the Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd,[2] while addressing the termination of agreements prior to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, remains apposite for applications to terminate agreements under the newly amended s.226 of the Act:
“All of the circumstances also need to be taken into account in considering whether termination of the agreements is appropriate. In particular the views of employers and employees covered by the agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s. 226(b) to take into account all of the circumstances including those set out in s. 226(b)(i) and (ii) is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, we approached the task by reference to the construction of s. 226 and the contextual matters that bear upon that construction dealt with earlier as well as giving specific consideration to the matters identified in s. 226(b)(i) and (ii).”[3] (reference omitted)
Section 226(2) of the Act does not fall for consideration on the facts of this case.
Regarding s.226(3) of the Act, the circumstances are such that the Applicant supports the termination of the Agreement, there are no employees covered by the Agreement, and the PPTEU provided no response to my chambers’ request for their views regarding the proposed termination.
The circumstances are also such that as there are no parties engaged in bargaining for a new enterprise agreement, s.226(4) is not a relevant factor and I do not consider there are any other relevant matters that require consideration (s.226(5)). For completeness, s.226A of the Act is irrelevant in the circumstances of this case.
Conclusion
Having regard to the matters and conclusions outlined above, I consider it is appropriate in all the circumstances of this case to terminate the Agreement (s.226(1A)).
Having made these findings, s.226 of the Act requires that I terminate the Agreement.
Operative date of termination
Section 227 of the Act affords the Commission a discretion as to the operative date of a termination of an agreement.
Noting that the Agreement reached its nominal expiry date on 31 October 2023 and that there is an absence of material before me suggesting there is any reason to delay the termination of the Agreement, I consider the termination of the Agreement should operate forthwith.
The termination will therefore operate from 1 March 2024. An order to this effect will be issued with this decision.
COMMISSIONER
[1] AE511309.
[2] [2015] FWCFB 540.
[3] Ibid at [167].
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