Transfield Worley Power Services Pty Ltd

[2024] FWC 1317

[2024] FWC 1317

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Transfield Worley Power Services Pty Ltd

(AG2023/4946)

WORLEY POWER SERVICES AGL LOY YANG STATION MECHANICAL (AMWU & CFMEU) ENTERPRISE AGREEMENT 2022

Power Industry Maintenance Services

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 JULY 2024

Application for termination of the Worley Power Services AGL Loy Yang Power Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2022

1. On 6 December 2023, Transfield Worley Power Services Pty Ltd (Applicant) filed an application (Application) for termination of the Worley Power Services AGL Loy Yang Power Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2022 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act). On 19 December 2023, I approved termination of the Agreement and ordered that the Agreement be terminated from that date (19 December 2023 Decision).[1]

1. The Agreement terminated pursuant to the 19 December 2023 Decision was a single enterprise agreement with a nominal expiry date of 31 March 2025.[2] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) were recorded as being covered by it.[3]

1. The Application had been accompanied by a Form F24A – Declaration in support of termination of an enterprise agreement (Form F24A) made by Ms Amanda Yearsley, Director, People & Workplace Relations. Ms Yearsley had declared that there were no employees covered, or likely to be covered, by the Agreement and that the unions covered by the Agreement had agreed to its termination.

1. I conducted a telephone mention on 24 January 2024 with the Applicant, the AMWU and the CFMEU in attendance. I outlined the provisional view that the Commission’s power under s.602 of the Act should be exercised to correct an obvious error in the 19 December 2023 Decision, being the determination to approve the termination of the Agreement. I opined that the Application should have been dismissed because there were no employees covered by the Agreement and therefore, no employees in a position to approve its termination. The parties were invited to provide written submissions in response to my provisional view. In response, the AMWU provided an outline of submissions which was adopted by the CFMEU.

Consideration

1. I have had regard to the text of ss.219 – 223 of the Act and the material provided by the parties. I am satisfied that there having been no employees of the Applicant at the material time, the Applicant could not have complied with the requirements in s.220 of the Act (s.223(a)) and there could not have been employee approval to terminate the Agreement via a vote, as contemplated by s.221(1) of the Act. In such circumstances, there was no basis to be satisfied that termination of the Agreement was agreed in accordance with s.221(1) of the Act (s.223(b)). The findings these circumstances required were that there were reasonable grounds for believing that employees had not agreed to the termination of the Agreement (s.223(c)) and that it was not appropriate to approve the termination (s.223(d)). More fundamentally, there was no basis for the Applicant to make application to the Commission pursuant to s.222 of the Act for approval of a termination of the Agreement.

1. I agree with the proposition that because the prerequisites for the exercise of the Commission’s power in s.223 of the Act had not been met, there was no jurisdiction to approve the termination of the Agreement, as the 19 December 2023 Decision purported to do.[4] I accept that Section 223(b), for example, requires the Commission to be satisfied that the termination was agreed to in accordance with s.221(1) and that this is a necessary precondition for the exercise of the jurisdiction. As was outlined in Minister for Immigration and Multicultural Affairs v Bhardwaj,[5] a decision involving jurisdictional error has no legal foundation and is to be regarded as no decision at all and further, the duty to make a decision remains unperformed.[6] I will therefore proceed on the basis that the duty to make a decision in respect of the Application, under s.223 of the Act, remains unperformed and both the 19 December 2023 Decision and accompanying Order[7] are of no effect.

1. Having regard to the circumstances I have outlined above in [5], I am not satisfied that an application pursuant to s.222 was able to be made and I am neither satisfied that I am required to approve the termination of the Agreement, nor do I consider that it is appropriate for me to do so. I do not approve the termination of the Agreement and dismiss the application.

1. If it remains the desire of the Applicant to apply to the Commission to terminate the Agreement, they will have to wait until the Agreement has passed its nominal expiry date and pursue an application pursuant to s.225 of the Act.

DEPUTY PRESIDENT

[1] Application for termination of the Worley Power Services AGL Loy Yang Power Station Mechanical (AMWU &

CFMEU) Enterprise Agreement 2022 [2023] FWCA 4199 (19 December 2023) at [11].

[2] AE515934 at clause 4.1.

[3] AE515934 at clause 2.1.

[4] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (16 November 2000) at [162]: ‘There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks power to do’ (Hayne J) (Aala).

[5] [2002] HCA 11.

[6] Ibid at [53].

[7] AE515934 PR 769620.

Printed by authority of the Commonwealth Government Printer

<AE515934  PR775166>