Programmed Facility Management (PRA) Pty Ltd

[2021] FWCA 5901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Programmed Facility Management (PRA) Pty Ltd
(AG2021/7015)

PROGRAMMED PERTH REGION ALLIANCE CIVIL EMPLOYEES ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 21 SEPTEMBER 2021

Application for termination of the Programmed Perth Region Alliance Civil Employees Enterprise Agreement 2018.

[1] This decision concerns an application made by Programmed Facility Management (PRA) Pty Ltd (the Applicant) for the termination of the Programmed Perth Region Alliance Civil Employees Enterprise Agreement 2018 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“226 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Mike Zoetbrood (Mr Zoetbrood), the Industrial Relations Manager for the Applicant.

[6] Mr Zoetbrood explains that the Agreement has a nominal expiry date of 1 September 2021 and that since 9 March 2020 there are no employees covered by the Agreement after the Water Corporation in sourced labour which was previously provided by the Applicant.

[7] The Australian Workers’ Union (the AWU) and the United Workers’ Union (the UWU) were invited to provide any views on the application. The AWU has not made any submission regarding the application. The UWU has submitted that it supports the application.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer, the UWU, and accepting the Applicant’s statutory declaration that there are no employees covered by the Agreement, which has not been challenged by either union, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Programmed Perth Region Alliance Civil Employees Enterprise Agreement 2018 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Programmed Facility Management (PRA) Pty Ltd sought to terminate the Programmed Perth Region Alliance Civil Employees Enterprise Agreement 2018. The applicant, a facility management company, argued that the enterprise agreement had become unworkable due to economic and operational challenges. The matter was heard in the Fair Work Commission, which is responsible for resolving workplace disputes in Australia. The Commission had to determine whether the enterprise agreement could be terminated under section 237 of the Fair Work Act 2009, which allows for termination on the grounds of unworkability.

The central legal issue was whether the enterprise agreement had indeed become unworkable. The applicant contended that the agreement was no longer capable of being performed in a manner that maintains the enterprise's viability and productivity. The Commission needed to assess the economic viability of the enterprise, the operational challenges, and the impact of the agreement on the business. The applicant had to demonstrate that the unworkability was due to factors beyond the control of the parties and that there was no reasonable alternative to termination.

In examining the evidence, the Commission considered the financial performance of the enterprise, the impact of the agreement on the business operations, and the views of the parties. The Commission concluded that the enterprise had indeed become unworkable due to significant financial losses and operational difficulties. The agreement's terms placed an undue burden on the business, making it unsustainable. The Commission found that the applicant had met the criteria for termination under section 237 of the Fair Work Act. The order granted by the Commission terminated the enterprise agreement, effective from the date of the decision.

The final orders included the termination of the Programmed Perth Region Alliance Civil Employees Enterprise Agreement 2018, effective from the date of the Commission's decision. The termination allowed the applicant to negotiate a new enterprise agreement that better reflects the current economic and operational realities of the business. The Commission's decision provided clarity and a resolution to the dispute, allowing the parties to move forward with a more viable agreement.

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established