s.225 - Enterprise agreement

Brolga Constructions Pty Ltd Trading AS Wurtulla Plumbing and Drainage

Application for termination of the Brolga Constructions Enterprise Agreement 2019

• [1] This is a decision about an application by Brolga Constructions Pty Ltd (Brolga) to terminate their Brolga Constructions Enterprise Agreement 2019[1] (the Agreement) after its nominal expiry date which was reached on 12 August 2023. It has been made under s.225 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is expressed to cover employees undertaking maintenance or construction plumbing work and/or fire protection work, engaged by Brolga under the Agreement.

[2] Sections 225[2] and 226[3] of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) set out the relevant provisions of the law that are considered in applications of this nature.

• [3] The application was accompanied by a F24C declaration completed by Mr Craig Sweetman (General Manager). Mr Sweetman states that employees engaged under the Agreement initially have since left the business and it is the business's intention to use the Award to underpin common law arrangements in the future. I note that the Applicant purported that no employee continued to be engaged by the Agreement however when I sought copies of the pay slips and common law agreements of existing employees, it became apparent that those employees continue to be employed by the Agreement.

• [4] I provided those employees with an opportunity to make any views known to the Commission about the application however no views were received.

• [5] I note that the Applicant did not put the termination of the Agreement to the vote and on that basis the Commission must give consideration so the criteria set out at s.226 of the Act before orders can be made to terminate the Agreement.

Grounds that must be met for the Commission to Terminate the Agreement

• [6] There were no submissions made, nor any evidence put before the Commission to satisfy me that the continued operation of the Agreement would be unfair for those employees still covered by the Agreement. I therefore cannot be satisfied that this precondition has been met.[4] Therefore the Agreement cannot be terminated on this basis.

• [7] As I found at paragraph [3], there were employees that remain covered by the Agreement.[5] Therefore the Agreement cannot be terminated on this basis.

• [8] There were no submissions made, nor any evidence put before the Commission to satisfy me that the continued operation of the Agreement would post a significant threat to the viability of the business carried on by the employer or employees covered by the agreement;[6] and whilst it is the case that where this is so, the Commission is unable to terminate the Agreement I note that no submissions were made in relation to the other criteria set out at s.226 (1)(c) of the Act which would also need to be met in order for such an order to be made.

• [9] In these circumstances the Commission is unable to make an order to terminate the Agreement. The Application to terminate the Agreement is therefore dismissed. I so order.

[1] Brolga Constructions Enterprise Agreement 2019 [2019] FWCA 5614; AE504848; AG2019/2045.

**[2]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.

[3]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

( 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);

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