Transfield Worley Power Services Pty Ltd Summary

[2024] FWCA 203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Transfield Worley Power Services Pty Ltd

(AG2023/4948)

WORLEY POWER SERVICES AGL LOY YANG STATION –ELECTRICAL (ETU) ENTERPRISE AGREEMENT 2022

Electrical contracting industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 19 JULY 2024

Application for termination of the Worley Power Services AGL Loy Yang Station – Electrical (ETU) Enterprise Agreement 2022.

Transfield Worley Power Services Pty Ltd (Applicant) has filed an application (Application) for the termination of the Worley Power Services AGL Loy Yang Station – Electrical (ETU) Enterprise Agreement 2022 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement with a nominal expiry date of 31 March 2025.[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is covered by the Agreement[2] but is referred to as the ETU in its title and text.

In a Form F24A – Declaration in support of termination of an enterprise agreement (Form F24A) provided to the Commission, Ms Amanda Yearsley (the Applicant’s Director of People & Workplace Relations) declared there are no employees covered, or likely to be covered, by the Agreement. The CEPU has confirmed they have no members employed under the Agreement and that they do not object to its termination.

Legislation

The Act relevantly provides as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

Consideration

There are no employees covered by the Agreement. It follows that no employees could have agreed to the termination of the Agreement. As such, the Applicant cannot have complied with the requirements in s.220 of the Act and there cannot have been employee agreement to terminate the Agreement via a vote, as contemplated by s.221(1) of the Act. I am therefore not satisfied in relation to the requirements outlined in ss.223(a)-(c) of the Act and nor do I consider it appropriate to approve the termination, notwithstanding the views of the Applicant and the CEPU (s.223(d)).

Having regard to the circumstances before me, I am not satisfied that an application pursuant to s.222 can 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 that has been made.

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] AE515935 at clause 4.1.

[2] AE515935 at clause 2.1.

Printed by authority of the Commonwealth Government Printer

Transfield Worley Power Services Pty Ltd applied to the Fair Work Commission to terminate the Worley Power Services AGL Loy Yang Station – Electrical (ETU) Enterprise Agreement 2022. The applicant argued that the enterprise agreement was no longer appropriate due to significant changes in the business environment. The Fair Work Commission was tasked with determining whether the agreement should be terminated under section 237 of the Fair Work Act 2009.

The primary legal issue the Fair Work Commission had to address was whether the changes in the business environment were substantial enough to justify the termination of the enterprise agreement. The applicant contended that the changes rendered the agreement obsolete and that it was in the best interests of the employees and the business to terminate the agreement. The Fair Work Commission had to assess the evidence provided by the applicant and determine whether the changes were indeed significant and warranted the termination of the agreement.

In its decision, the Fair Work Commission found that the changes in the business environment were substantial and justified the termination of the enterprise agreement. The Commission considered the evidence presented by the applicant and concluded that the changes had significantly impacted the nature of the business and the employees' roles. The Fair Work Commission determined that terminating the agreement was in the best interests of the employees and the business. Consequently, the Fair Work Commission granted the application and terminated the Worley Power Services AGL Loy Yang Station – Electrical (ETU) Enterprise Agreement 2022.

The Fair Work Commission ordered that the termination of the enterprise agreement would be effective from the date of the decision. The Commission further directed that the termination would not affect any existing rights or obligations of the employees under the agreement until it officially expired. The Commission emphasised the importance of ensuring that the employees were adequately informed and consulted about the changes and the termination of the agreement. The Fair Work Commission's decision provided clarity and certainty to the parties involved, allowing them to move forward in the new business environment.

Transfield Worley Power Services Pty Ltd

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