Fire & Safety Australia Pty Ltd T/A Fire & Safety Australia

[2024] FWCA 3936

[2024] FWCA 3936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 225—Enterprise agreement

Fire & Safety Australia Pty Ltd T/A Fire & Safety Australia

(AG2024/4290)

FIRE & SAFETY AUSTRALIA (WHEATSTONE) ENTERPRISE AGREEMENT 2020

Fire fighting services
COMMISSIONER LIM	PERTH, 12 NOVEMBER 2024

Application for termination of the Fire & Safety Australia (Wheatstone) Enterprise Agreement 2020.

1. Introduction

1. Fire & Safety Australia Pty Ltd T/A Fire & Safety Australia has made an Application to the Fair Work Commission to terminate the Fire & Safety Australia (Wheatstone) Enterprise Agreement 2020 after its nominal expiry date. The Application is made under s 225 of the Fair Work Act 2009 (Cth).

1. The Agreement is a single enterprise agreement, and its nominal expiry date was 6 October 2024.

1. In support of the Application, Fire & Safety Australia filed a statutory declaration from its Chief Executive Officer, Mr Steve McLeod. 

1. Per Mr McLeod’s statutory declaration, there are no employees covered by the Agreement. Further, the Applicant has no intention of engaging any employees under the Agreement in the foreseeable future.

1. The Australian Workers’ Union is an employee organisation that is a party to the Agreement. The AWU does not oppose the termination of the Agreement.

1. The matter will now be determined on the material before me.

1. Legislative provisions

1. Sections 225, 226 and 227 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide that:

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 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

1. Consideration

1. I am satisfied that the termination of the Agreement is not contrary to the public interest.

1. I consider that in the circumstances it is appropriate to terminate the Agreement. The views of the employer have been taken into account and I accept Mr McLeod’s evidence in his statutory declaration that there are no employees covered by the Agreement.

1. There is no evidence before me suggesting that there is bargaining for a new enterprise agreement. It follows that the termination of the Agreement would not have any detrimental impact or result in a shift in bargaining power, in relation to enterprise bargaining, for the Applicant or other relevant party. Further, there does not appear to be any other relevant matter that warrants consideration. 

1. Accordingly, the Agreement is terminated.

1. Pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision. An Order[1] to this effect is issued concurrently with this decision.

COMMISSIONER

[1] PR781142.

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