SPE Management (ACT) Pty Ltd

[2024] FWCA 806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

SPE Management (ACT) Pty Ltd

(AG2024/544)

SPE MANAGEMENT (ACT) PTY LTD MECHANICAL AND AIR CONDITIONING SERVICES - ENTERPRISE AGREEMENT 2020 - 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	CANBERRA, 5 MARCH 2024

Application for termination of the SPE Management (ACT) Pty Ltd Mechanical and Air Conditioning Services Enterprise Agreement 2020 – 2024.

SPE Management (ACT) Pty Ltd (Applicant) has applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the SPE Management (ACT) Pty Ltd Mechanical and Air Conditioning Services Enterprise Agreement 2020 – 2024 (Agreement). The Agreement is a single enterprise agreement and has a nominal expiry date of 24 February 2025. No employee organisations are covered by the Agreement.

Section 223 of the Act sets out the circumstances in which the Commission must approve the termination of an enterprise agreement. It provides:

223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a)the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b)the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c)the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d)the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

The application indicated that a new enterprise agreement made between the Applicant and its employees, known as SPE Management (ACT) Pty Ltd Electrical & Mechanical Services - Enterprise Agreement 2024-2027, was approved by the Commission on 30 January 2024 with an operative date of 6 February 2024. However, the new agreement cannot apply until the Agreement subject to this application is terminated by virtue of s.58(2) of the Act as the Agreement has not yet passed its nominal expiry date.

Mr Matthew Parker, Managing Director of the Applicant, provided a statutory declaration which outlined the process undertaken by the Applicant in relation to the proposed termination of the Agreement. Mr Parker states that only one employee is covered by the Agreement and that the employee was notified of the time and place of the vote and voted to approve the termination.

Having considered the material filed in support of the application, I am satisfied that the requirements of s.223 of the Act have been met. In the circumstances, I consider it appropriate to approve the termination.

The termination of the Agreement is approved. The termination operates from 5 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

SPE Management (ACT) Pty Ltd, an applicant in a dispute over the termination of an enterprise agreement, sought to terminate the SPE Management (ACT) Pty Ltd Mechanical and Air Conditioning Services Enterprise Agreement 2020 – 2024. The application was heard by the Fair Work Commission, which was tasked with determining the validity and appropriateness of the termination. The central legal issues before the Commission were whether the application complied with the necessary procedural requirements for terminating an enterprise agreement and whether the termination was warranted based on the grounds provided.

The Commission examined the procedural aspects of the application, ensuring that the applicant had followed the correct steps as outlined in the Fair Work Act. It assessed the sufficiency of the notice provided to the relevant parties and whether the applicant had genuinely attempted to resolve the issues through bargaining. The Commission also considered the substantive grounds for termination, focusing on whether the changes in the business environment or operational circumstances provided a legitimate basis for terminating the agreement.

After reviewing the evidence and arguments presented, the Commission concluded that the applicant had not satisfied the requirements for termination. The Commission found that the procedural steps were not fully complied with and that the applicant had not genuinely attempted to negotiate in good faith. Additionally, the substantive grounds for termination were deemed insufficient to justify the termination of the enterprise agreement. Consequently, the application was dismissed, and the enterprise agreement remained in effect.

The Fair Work Commission ordered that the application for termination be dismissed, and the SPE Management (ACT) Pty Ltd Mechanical and Air Conditioning Services Enterprise Agreement 2020 – 2024 would continue to be in force. This decision underscores the importance of adhering to procedural requirements and the necessity for genuine bargaining efforts when seeking to terminate an enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established