Tempo Construction & Maintenance Pty Ltd

[2020] FWCA 5123

[2020] FWCA 5123

FAIR WORK COMMISSION

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 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.”

Is it contrary to the public interest to termination the Agreement?

[14] Section 226(a) requires the FWC to be satisfied that it is not contrary to the public interest to terminate the Agreement.

[15] This requires the FWC to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standard. 1

[16] There is no positive onus on an applicant to persuade the FWC that there are positive benefits to the public interest arising from the termination. In Geelong Wool Combing Ltd 2Commissioner Wheelan said:

“… the Commission must be persuaded that termination is contrary to the public interest [and] in the absence of any effect of termination which is contrary to the public interest it is not necessary to persuade the Commission that there are positive benefits to the public interest arising from the termination.”

[17] The public interest is distinct in nature from the interests of those covered by the Agreement. The views of those covered by an agreement may be relevant to the exercise of the discretion if they shed light on the effect of the termination on public interest but those views should not be given any independent weight. 3

[18] The object of the FW Act is set out in section 3 of the FW Act, as follows:

“3. Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

…

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders;

…

(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;

…”

[19] The specific objects in section 171 of the FW Act inform how the general object in section 3 of the FW Act is to be satisfied in the context of matters dealt with in Part 2-4 of the FW Act:

“171. Objects of this Part

The objects of this Part are:

(a)  to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b)  to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”

[20] The ascertainment of what is not in the public interest does not involve the mere identification of a consequence of the termination of the agreement that is arguably contrary to the public interest. The ascertainment of the public interest may involve balancing countervailing public interests. 4

[21] Tempo submits that there are no matters contrary to the public interest in terminating the Agreement. In fact, by terminating the Agreement it will permit Tempo to tender for Government works by ensuring compliance with the Building Code and potentially increase the job opportunities Tempo may be able to offer.

[22] Based on the submissions of the parties and the evidence before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

What are the views of the Employees covered by the Agreement?

[23] There are no employees currently covered by the Agreement and Tempo does not propose to engage any employees pursuant to the Agreement in the future.

What are the views of the Employee Organisation covered by the Agreement?

[24] There are no employee organisations covered by the Agreement.

What are the views of the Employer covered by the Agreement?

[25] Tempo wish to have the Agreement terminated in order to be eligible to tender for Government funded works.

What are the circumstances of the Employees covered by the Agreement?

[26] There are no Employees covered by the Agreement.

What are the circumstances of the Employee Organisation covered by the Agreement?

[27] There are no employee organisations covered by the Agreement.

What are the circumstances of the Employer covered by the Agreement?

[28] Tempo say that the termination of the Agreement will enable the business to tender for Government funded works.

Is it appropriate to terminate the Agreement taking into account all the circumstances?

[29] In assessing the views and circumstances of the parties it is important to remember that:

“Taking into account the views and circumstances of the parties involves far more than an expression of their views in support or opposition to termination. It should involve a reason for their views and the validity of their concerns.” 5

The views of Tempo that the Agreement should be terminated appear to be valid. The Agreement has past its nominal expiry date. There are no Employees or employee organisations covered by the Agreement.

Conclusion

[30] For the reasons enunciated above, I am satisfied that it is not contrary to the public interest to terminate the Agreement. 

[31] Taking into account all the circumstances, including the views and circumstances of Tempo, I am satisfied that it is appropriate to terminate the Agreement.

[32] Accordingly, the Agreementis terminated. The termination is to take effect on and from Thursday 24 September 2020. An Order to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

 1   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40 – 41.

 2   (AIRC) 5 September 2003

 3   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at 40 – 41.

 4   Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393

 5   Energy Resources Australia Ltd v Liquor, Hospitality and Miscellaneous Union[2010] FWA 2434 at [16].

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