Protech Managed Project Services Pty Ltd - [2024] FWC 944

[2024] FWC 944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Protech Managed Project Services Pty Ltd

(AG2024/831)

PROTECH MANAGED PROJECT SERVICES PTY LTD & THE AUSTRALIAN WORKERS’ UNION AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 11 APRIL 2024

Application for termination of the Protech Managed Project Services Pty Ltd & The Australian Workers’ Union Agreement 2021

On 20 March 2024, Protech Managed Project Services Pty Ltd (Protech) applied under s 225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Protech Managed Project Services Pty Ltd & The Australian Workers’ Union Agreement 2021[1] (Agreement). The Agreement is a single-enterprise agreement,[2] which nominally expired on 28 February 2023.[3]

For the reasons that follow, I am satisfied that the Commission must terminate the Agreement because the Agreement does not, and is not likely to, cover any employees. Accordingly, the Agreement is terminated.

Procedural context

The Agreement covers Protech, The Australian Workers Union (AWU) and “[a]ll persons employed by the Company who are engaged in classifications prescribed in this Agreement on the Project, and within the scope set out in clause 5 of the Agreement (the "Employees”)”.[4] By clause 5.1, the Agreement applies to work performed by employees of Protech who are engaged in the classifications set out in Appendix A in the State of Victoria.[5]

On 25 March 2024, my Chambers emailed Protech and the AWU attaching directions. The directions set out the relevant legislation (ss 225, 226 and 615A of the Act) and stated as follows:

By its Form F24C, the Employer declared that:

· there are no employees covered, or likely to be covered by the Agreement;
· bargaining had commenced for a proposed new enterprise agreement but that it has since ceased;
· it no longer “provides employees” in Victoria.

Protech was directed to file in the Commission and serve on the AWU a witness statement explaining the circumstances which led to Protech ceasing to employ persons who were, or would have been, covered by the Agreement. A statement was filed accordingly by Natalie Stewart, Group People Director for Protech Group (AUST) Pty Ltd, the parent company of Protech, on 27 March 2024.

The directions also required the AWU to provide responsive views addressing whether it disagrees with any part of Protech’s evidence, and whether it opposes the application. On 3 April 2024, the AWU advised the Commission that it does not disagree with the content of Ms Stewart’s statement and does not oppose the application.

Legislation

Section 225 of the Act provides as follows:

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.

Section 226 of the Act provides:

(1)If an application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 944
Decision Date: 11 APRIL 2024

CaseChat Overview and Summary

Protech Managed Project Services Pty Ltd applied to the Fair Work Commission (FWC) to terminate the Protech Managed Project Services Pty Ltd & The Australian Workers’ Union Agreement 2021. The application was made under s 225 of the Fair Work Act 2009 (Cth) (Act) after the Agreement had nominally expired on 28 February 2023. The Agreement is a single-enterprise agreement that covers all persons employed by Protech who are engaged in classifications prescribed in the Agreement on the project, and within the scope set out in clause 5 of the Agreement. The application was made by Protech and was not opposed by The Australian Workers Union (AWU). The AWU provided responsive views confirming that it did not disagree with Protech’s evidence and did not oppose the application.

The central legal issue the FWC needed to decide was whether the Agreement could be terminated under s 226 of the Act because it does not, and is not likely to, cover any employees. Protech submitted that it had made a commercial decision to cease operating in the Victorian market and, as a result, it did not have any employees covered by the Agreement. The last employee placed under the Agreement concluded their employment with Protech on 15 March 2024. The AWU did not contest this evidence. The FWC found that the Agreement did not, and was not likely to, cover any employees. The FWC also found that there was no opposition to the application for termination of the Agreement and that it was appropriate to terminate the Agreement in all the circumstances.

The FWC terminated the Agreement under s 226(1)(b) of the Act. The termination will operate from 11 April 2024 in accordance with s 227 of the Act.

Orders