Transfield Worley Power Services Pty Ltd
[2024] FWCA 955
•17 JULY 2024
| [2024] FWCA 955 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Transfield Worley Power Services Pty Ltd
(AG2023/4950)
TW POWER SERVICES AGL LOY YANG MINE - ELECTRICAL (CEPU) ENTERPRISE AGREEMENT 2019
| Electrical contracting industry | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 17 JULY 2024 |
Application for termination of the TW Power Services AGL Loy Yang Mine, Electrical (CEPU) 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, Electrical (CEPU) 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 2021.[2]
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is covered by the Agreement[3] and within the Agreement’s text, adopts the ETU as its moniker.
I issued Directions attaching the Form F24B – Application and Form F24C – Statutory Declaration made by Ms Amanda Yearsley (People, and Workplace Relations Director), requiring the CEPU to advise whether or not they opposed the application of the Employer to terminate the Agreement. The CEPU has confirmed that they do not oppose the application to Terminate the Agreement but has not filed any further material for my consideration.
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 those 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 2021 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 and there is nothing before me suggesting otherwise.
Section 226((1A) 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 [6] Ms Yearsley has also declared that the Employer has no current or future work at Loy Yang Mine.
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 CEPU has indicated that it does 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 2021 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] AE504205.
[2] Ibid at clause 4.
[3] Ibid at clause 2.
[4] Ibid at clause 2.
Printed by authority of the Commonwealth Government Printer
<AE504205 PR772443>
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