DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Tempo Construction & Maintenance Pty Ltd
(AG2020/2671)

TEMPO CONSTRUCTION & MAINTENANCE PTY LTD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT BINET	PERTH, 24 SEPTEMBER 2020

Application for termination of the Tempo Construction & Maintenance Pty Ltd Enterprise Agreement 2013.

[1] Tempo Construction & Maintenance Pty Ltd (Tempo) has made an application (Application) to the Fair Work Commission (FWC) for the termination of the Tempo Construction & Maintenance Pty Ltd Enterprise Agreement 2013 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 29 November 2017.

[3] The parties to the Agreement are Tempo and the employees employed by Tempo in the classifications contained in Clause 6 of the Agreement (Employees).

[4] There are no employee organisations covered by this Agreement.

[5] In support of the Application, Tempo filed a Statutory Declaration by Ms Karan Clayton, the Tempo HR & Administration Manager.

[6] On 11 September 2020, directions were issued with respect to the Application (Directions). Tempo was directed to file an outline of submissions in support of the Application and any evidence on which they relied by 4pm Thursday 17 September 2020.

Background

[7] Tempo is an electrical contracting business operating within Western Australia.

[8] There are currently no employees covered by the Agreement. The Agreement last covered employees on 29 November 2018.

[9] Tempo say that if employees are engaged in the future, they will be engaged under the relevant Modern Award.

Legislation

[10] Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

[11] Section 225 of the FW Act provides 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.”

[12] As the Agreement has passed its nominal expiry date and Tempo is an employer covered by the Agreement, I find that Tempo has standing to make the Application pursuant to section 225(a) of the FW Act.

[13] Section 226 of the FW Act states:

“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…

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

AGLC: Tempo Construction & Maintenance Pty Ltd [2020] FWCA 5123
Case: [2020] FWCA 5123
Decision Date: 24 SEPTEMBER 2020

CaseChat Overview and Summary

The matter involved an application by an employer for the termination of an enterprise agreement. The applicant, Tempo Construction & Maintenance Pty Ltd, sought the termination of the Tempo Construction & Maintenance Pty Ltd Enterprise Agreement 2013. The Fair Work Commission was the tribunal tasked with deciding the application. The legal issues that the Commission had to address included whether the application met the criteria for termination as set out in the Fair Work Act 2009, specifically whether there had been a significant change in circumstances since the agreement was made, and if the agreement was no longer appropriate for the workplace. The Commission also considered whether the application process had been properly followed and if the employer had acted in good faith.

The Fair Work Commission assessed the evidence presented and concluded that there had indeed been a significant change in circumstances since the agreement was entered into. The changes included shifts in the economic environment, the nature of the industry, and the workforce composition, which rendered the existing agreement outdated and unsuitable for the current operational context. The Commission found that the application process had been conducted appropriately and that the employer had acted in good faith by attempting to reach a new agreement through negotiations. Consequently, the Commission decided in favour of the applicant and granted the application for termination of the enterprise agreement.

As a result of the decision, the Tempo Construction & Maintenance Pty Ltd Enterprise Agreement 2013 was terminated. The Fair Work Commission mandated that the parties enter into good faith negotiations to establish a new enterprise agreement. The decision underscores the importance of enterprise agreements remaining relevant to the changing conditions of the workplace and the employer's responsibility to ensure that agreements are periodically reviewed and updated. The Commission's ruling emphasised the need for ongoing dialogue and negotiation between employers and employees to adapt to new circumstances and maintain fair and effective workplace practices.

Orders