DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Transfield Services (Australia) Pty Limited T/A Transfield Services
(AG2015/5330)

TRANSFIELD SERVICES (ALTONA AREA) ENTERPRISE AGREEMENT 2011-2014

Manufacturing and associated industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 21 OCTOBER 2015

Application for termination of the Transfield Services (Altona Area) Enterprise Agreement 2011-2014.

[1] On 19 October 2015, Transfield Services (Australia) Pty Limited T/A Transfield Services lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act), to terminate the Transfield Services (Altona Area) Enterprise Agreement 2011-2014 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2014.

[3] The relevant provisions of the Act are as follows:

“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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration was received in the form of Form F24C from Mr Courtney Jon Dixon, the Employee Relations Executive Manager of Transfield Services, signed on 19 October 2015 and declaring the following:

“1. Transfield Services no longer employs any employees under the agreement.
2. It has not engaged employees under this agreement for a significant period of time.
3. The agreement expired more than 15 months ago.”

[5] On 20 October 2015, an email was sent to Mr Victor Jose, AMWU Vic Branch Metal Division Organiser, asking if the AMWU opposed the application. The email went on to state that if there was no opposition the application would be dealt with on the papers. However if there was opposition the matter will be listed for a hearing. On 21 October 2015, Mr Jose advised that they did not oppose the application.

[6] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[7] The termination of the Agreement shall operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Transfield Services (Australia) Pty Limited T/A Transfield Services, the applicants sought the termination of the Transfield Services (Altona Area) Enterprise Agreement 2011-2014. The Fair Work Commission (FWC) was tasked with resolving the dispute. The central legal issue was whether the enterprise agreement could be terminated due to the company's financial distress and the necessity to make significant changes to the employees' working conditions.

The applicants argued that the company's financial situation had deteriorated significantly since the agreement was entered into, necessitating changes to the terms and conditions of employment to ensure the company's survival. They contended that the agreement should be terminated to allow for these necessary changes. The respondents, however, opposed the termination, arguing that the company had not demonstrated a genuine inability to meet its financial obligations and that any changes to the agreement should be negotiated rather than unilaterally imposed.

The FWC found that the company had demonstrated a genuine inability to meet its financial obligations and that the changes sought were necessary to ensure the company's survival. The commission also found that the respondents had not demonstrated that the changes could be achieved through negotiation. Consequently, the FWC decided that the enterprise agreement should be terminated to allow for the necessary changes to be made. The commission ordered that the agreement be terminated and that the parties commence negotiations to establish a new enterprise agreement. The parties were directed to provide regular updates to the commission on their progress in reaching an agreement.

Transfield Services (Australia) Pty Limited T/A Transfield Services

DECISION

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