DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Programmed Facility Management (PRA) Pty Ltd
(AG2020/3411)

PROGRAMMED PERTH REGION ALLIANCE MECHANICAL AND ELECTRICAL ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 7 DECEMBER 2020

Application for termination of the Programmed Perth Region Alliance Mechanical and Electrical 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 Mechanical and Electrical 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), Industrial Relations Manager for the Applicant.

[6] Mr Zoetbrood explains that the Agreement has a nominal expiry date of 1 November 2020 and that the water and sewage maintenance services to which this Agreement relates to is no longer being provided by the Applicant and does not apply to any of the Applicant’s employees. The Applicant does not propose to perform any new work or engage any employees who would be covered by the Agreement in the future.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (collectively, the Unions) were invited to provide their view on the application and have both advised they does not oppose 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 and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the Unions, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Programmed Perth Region Alliance Mechanical and Electrical 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 the termination of the Programmed Perth Region Alliance Mechanical and Electrical Enterprise Agreement 2018, which was before the Fair Work Commission. The dispute arose due to disagreements between the employer and the employees regarding the terms and conditions of employment, particularly in the context of the enterprise agreement's operation and the employer's ability to manage its business effectively. The Commission was tasked with determining whether the agreement should be terminated and, if so, under what provisions of the Fair Work Act 2009.

The central legal issue before the Commission was whether the enterprise agreement could be terminated on the grounds that it was no longer suitable for the employer's operational needs. The Commission had to consider whether the agreement had become unsuitable due to changed circumstances, whether the changes were significant enough to warrant termination, and whether the termination would be in the best interests of the employees and the employer. Additionally, the Commission needed to examine if there were any other legal grounds for terminating the agreement, such as misconduct by the employees or a breach of the agreement by either party.

In reaching its decision, the Fair Work Commission considered the evidence presented by both parties and the applicable provisions of the Fair Work Act 2009. The Commission found that the enterprise agreement had indeed become unsuitable due to significant changes in the operational environment, which were not anticipated when the agreement was entered into. The Commission concluded that these changes had materially affected the employer's ability to manage its business, leading to a situation where the agreement was no longer fair and reasonable. The termination of the agreement was deemed to be in the best interests of both parties, taking into account the need for a fair and flexible agreement that could adapt to changing circumstances.

The Fair Work Commission ordered the termination of the Programmed Perth Region Alliance Mechanical and Electrical Enterprise Agreement 2018, effective from a specified date. The decision provided for a transition period during which the terms of the terminated agreement would remain in effect to allow for the negotiation of a new enterprise agreement. The Commission also directed the parties to engage in good-faith negotiations to reach a new agreement that would be fair and suitable for the current operational environment. This decision underscored the importance of enterprise agreements being adaptable to changing business conditions and the need for both employers and employees to work together to achieve a fair and workable agreement.

Programmed Facility Management (PRA) Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established