Equans Fire Protection Services Pty Ltd
[2024] FWCA 2929
•9 AUGUST 2024
| [2024] FWCA 2929 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Equans Fire Protection Services Pty Ltd
(AG2024/2927)
ENGIE FIRE SERVICES PORTABLE SERVICE TECHNICIAN ENTERPRISE AGREEMENT 2018-2022
| Manufacturing and associated industries | |
| COMMISSIONER REDFORD | MELBOURNE, 9 AUGUST 2024 |
Application for termination of the ENGIE Fire Services Portable Service Technician Enterprise Agreement 2018 - 2022
Equans Fire Protection Services Pty Ltd (the Applicant) has applied, pursuant to s 225 of the Fair Work Act 2009 (the Act), to terminate the ENGIE Fire Services Portable Service Technician Enterprise Agreement 2018-2022[1] (the Agreement).
The application was supported by a Form F24C Declaration made by Ms Nikki-Lee Holden, the HR Business Partner for the Applicant, on 2 August 2024.
The declaration asserts there are no employees covered or likely to be covered by the Agreement. On 8 August 2024. I requested short submissions from the Applicant explaining how it is that there are no employees covered or likely to be covered by the Agreement.
In order to grant an application made pursuant to s 225 of the Act, the Commission must be satisfied as to the requirements of ss 225, 226 and, if relevant, 226A of the Act.
Relevantly, ss 225 and 226 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.
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 positionof 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.”
The Agreement has passed its nominal expiry date, which is 26 November 2022.
The Applicant is covered by the Agreement and is entitled to make the application.
Subject to s 226(1A), s 226(1)(b) of the Act provides that the Commission must terminate the agreement if it is satisfied that the agreement does not, and is not likely to, cover any employees.
The declaration asserts there are no employees covered or likely to be covered by the Agreement. I note that the Agreement covers only “Portable Services Technicians”[2]. In submissions filed by the Applicant on 8 August 2024, it is said that:
(a) the number of employees covered by this Agreement has continued to decline over the past 4 – 5 years, with only 1 -2 employees being covered by this Agreement in the last 2 years.
(b)the last employee covered by the Agreement finished with the business last month.
(c) The primary role of a Portable Service Technician is to service and maintain portable fire equipment (i.e. portable fire extinguishers) (“Portables work”).
(d) The Applicant does not intend to hire any future Portable Service Technicians as the business does not have enough of this type of work for the foreseeable future and does not intend pursue this type of work as part of the business strategy.
(e) Moving forward, any continuing portables work will be absorbed/performed by other Fire Protection employees, performing other types of fire protection work (i.e. electrical inspection and testing work, sprinkler fitting work etc),as a minor/ancillary part of their role.
On this basis, I am satisfied that the agreement does not presently cover any employees. The views of employees covered by the agreement cannot therefore be sought.
The employer supports the termination of the Agreement. I note there are no employee organisations covered by the Agreement.
Section 226(4) of the Act is not relevant in relation to this application.
No other matter has been brought to my attention warranting regard pursuant to s 226(5) of the Act.
Based on the material before me I am satisfied that the Agreement does not and is not likely to cover any employees, and that the requirements of s 226(1)(b) are met. I am also satisfied that it is appropriate in all the circumstances to terminate the Agreement.
The termination of the Agreement shall operate from 9 August 2024. An Order to this effect will be issued with this decision.
COMMISSIONER
[1] AE425104
[2] See cl 2, 3 and Appendix C of the Agreement
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<AE500882 PR778163>
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