Transfield Worley Power Services Pty Ltd
[2024] FWCA 312
•17 JULY 2024
| [2024] FWCA 312 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Transfield Worley Power Services Pty Ltd
(AG2023/4951)
TW POWER SERVICES AGL LOY YANG MINE, MECHANICAL (AMWU & CFMEU) ENTERPRISE AGREEMENT 2019
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 17 JULY 2024 |
Application for termination of the TW Power Services AGL Loy Yang Mine, Mechanical (AMWU & CFMEU) Enterprise agreement 2019
An application has been filed by Transfield Worley Power Services Pty Ltd (Employer) seeking the termination of the TW Power Services AGL Loy Yang Mine, Mechanical (AMWU & CFMEU) Enterprise agreement 2019 (the Agreement)[1] pursuant to s.225 of the Fair Work Act 2009 (Act). The Agreement has passed its nominal expiry date of 31 March 2022.[2]
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Construction, Forestry, Mining and Energy Union (CFMEU) (hereafter described as ‘the Unions’) are covered by the Agreement.[3] When issuing directions attaching the Form F24B – Application and Form F24C – Statutory Declaration made by Ms Amanda Yearsley (People, and Workplace Relations Director), I required the Unions to advise whether or not they opposed the application of the Employer to terminate the Agreement. Ultimately, the Unions do not oppose the termination of the Agreement and the Employer sent further correspondence to my Chambers in support of the termination of the Agreement.
Legislation
The Commission must be satisfied that the requirements in s.225, s.226 and s.226A of the Act are met prior to approving the termination of the Agreement. I have reviewed the text of these provisions.
Consideration
Section 225 of the Act
An employer covered by the Agreement may apply to the Commission under s.225(a) of the Act for its termination if it has passed its nominal expiry date. I am satisfied that the Employer has standing to bring the Application under s.225(a) of the Act because, as noted above, the Agreement nominally expired on 31 March 2022 and the Employer is an employer covered by the Agreement.[4]
Section 226 of the Act
Section 226(1)(b) of the Act states if an application for the termination of an enterprise agreement is made under section 225, the Commission must terminate the agreement if it is satisfied that the agreement does not, and is not likely to, cover any employees. Ms Yearsley has declared there are no employees covered by the Agreement, that the Employer ceased its maintenance and outages services contractual arrangements at AGL’s Loy Yang Mine and Station in 2021 and 2023 and that the Employer has no ongoing contractual arrangements with AGL at both the Loy Yang Station and Mine.
Section 226((1A) of the Act provides, however, that the Commission must terminate the Agreement only if it is satisfied that it is appropriate in all the circumstances to do so and s.226(5) outlines that the Commission may also have regard to any other relevant matters.
Further to what is outlined above in [5] Ms Yearsley has made the following uncontested submissions:
“Worley’s Strategic direction, globally, is focused on sustainability focused growth, moving its core business and direction to support clients with the energy transition and decarbonisation. Worley announced its target and ambition of deriving over 75% of its revenue from sustainability-related projects by FY26. This represents a substantial change, and significant shift, for the organisation, leading and supporting customers to decarbonise and create a more sustainable environment. This is further reflected in the significant rebranding exercise to articulate Worley’s ambition to have a positive contribution to delivering a more sustainable world.
Globally, the Company now precludes tendering for new work in coal fired power stations and as a result the Australian business will no longer be performing work, or employing any Craft Personnel, which may be covered by the above mentioned expired Enterprise Agreement. Any exceptions to the Company’s global direction, in extreme circumstances, will require CEO and Board approval and is therefore unlikely to occur, with other opportunities in fossil fuel related projects already not receiving approval to proceed.”[5]
Section 226(2) of the Act does not fall for consideration on the facts of this case and as regards s.226(3), the circumstances are such that the Employer supports the termination of the Agreement, there are no employees covered by the Agreement and the Unions have indicated that they do not object to the termination of the Agreement. Further, as there are no parties engaged in bargaining for a new enterprise agreement, s.226(4) is not a relevant factor and I am not aware of and nor do I consider there are any other relevant matters that require consideration (s.226(5)). For completeness, s.226A of the Act is irrelevant in the circumstances of this case.
Having regard to the matters and conclusions outlined above, I consider it is appropriate in all the circumstances of this case to terminate the Agreement (s.226(1A))
Conclusion
Having made these findings, s.226 of the Act requires that I terminate the Agreement.
Operative Date of Termination
Section 227 of the Act affords the Commission a discretion as to the operative date of a termination of an agreement.
Noting that the Agreement reached its nominal expiry date on 31 March 2022 and that there is an absence of material before me suggesting there is any reason to delay the termination of the Agreement, I consider the termination of the Agreement should operate forthwith.
The termination will therefore operate from 17 July 2024. An order to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] AE504884.
[2] Ibid at clause 4.
[3] Ibid at clause 2.
[4] Ibid at clause 2.
[5] Email correspondence dated 23 January 2024.
Printed by authority of the Commonwealth Government Printer
<AE504884 PR770553>
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