Workpac Pty Ltd

[2024] FWCA 778

[2024] FWCA 778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Workpac Pty Ltd

(AG2024/424)

WORKPAC PTY LTD & AWU VICTORIA MAJOR PROJECTS AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 1 MARCH 2024

Application for termination of the WorkPac Pty Ltd & AWU Victoria Major Projects Agreement 2017

1. Workpac Pty Ltd (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) for approval to terminate the WorkPac Pty Ltd & AWU Victoria Major Projects Agreement 2017[1](the Agreement). The Applicant is the employer covered by the Agreement.

1. The Agreement is a single enterprise agreement and was approved by the Commission on 20 July 2017. It reached its nominal expiry date on 28 February 2020.

1. 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.

1. Section 226 of the Act provides:

“226  Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)  the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)  all of the following apply:

(i)  the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)  the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)  if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)  However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)  This subsection covers a termination of the employment of an employee:

(a)  at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)  because of the insolvency or bankruptcy of the employer.

(3)  In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)  the employees (unless there are no employees covered by the agreement);

(b)  each employer;

(c)  each employee organisation (if any).

Note:          The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)  In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)  whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)  whether bargaining for the proposed enterprise agreement is occurring; and

(c)  whether the termination of the existing agreement would adversely affect the bargaining positionof the employees that will be covered by the proposed enterprise agreement.

(5)  In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The Application was supported by a Statutory Declaration made by Ms Alexa Burchell of the Applicant on 22 February 2024.

1. Ms Burchell declared that there are no employees covered by the Agreement. She also declares that the termination of this Agreement ‘simplify the Employer’s framework of enterprise agreements’ and will not preclude the creation of future  agreements.[2] They also advise that they have another ‘enterprise agreement that covers larger construction jobs in the state of Victoria. It is the WorkPac Pty Ltd & The Australian Workers' Union Agreement 2023 (AG2023/1653).’[3]  

1. The Australian Workers' Union (AWU) are a bargaining representative and covered by the Agreement. On 27 February 2024, my chambers sent out an email to the bargaining representative covered by the Agreement, seeking their views on termination of the Agreement. On 29 February 2024, chambers received an email from the AWU confirming that there are no employees covered by the Agreement and they have no objections to its termination.

1. Based on the materials that are before the Commission, including Ms Burchell’s statutory declaration and the correspondence from the employee organisation covered by the Agreement, I am satisfied that termination of the Agreement is not contested, and the matter can be determined on the papers. I am satisfied that the Agreement does not and is not likely to cover any employees and the termination of the Agreement will not affect any employee of the employer that is excluded from the operation of the Agreement. I am satisfied that the requirements of s.226 of the Act have been met. I find that it is appropriate in all the circumstances to approve the termination of the Agreement pursuant to section 226 (1) of the Act.

1. Accordingly, the termination will operate from 1 March 2024.

COMMISSIONER

[1] AE424953.

[2] Form F24C, question 4.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

<AE424953  PR771962>