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[15]
austlii:cth/FWCA/2025/2302
General information, not legal advice.
FWCA
2025-07-23
Original judgment source is linked above.
The Application was accompanied by a Form F24C Declaration in relation to termination of an enterprise agreement after the nominal expiry date completed by Ms Jane Bourke ER/IR Manager (Declaration).
[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act and was approved by Deputy President Beaumont on 5 April 2019 and commenced operation on 12 April 2019. The Agreement has a nominal expiry date 4 April 2023.
[3] The parties to the Agreement are GCS Integrated Services Pty Ltd (GCS) and employees of GCS that are engaged in the classifications covered by the Agreement who perform work at the Woodside Karratha Gas Plant and King Bay Supply Base (Employees).
[4] There is no employee organisation covered by the Agreement.
[5] In the Application SRG declared that in January 2019, SRG Global limited (the parent company of the SRG) merged with GCS Limited (the previous parent company of GCS Integrated Services Pty Ltd). Following the merger, the Agreement continued to apply to employees who were employed under the Agreement, as at the time of the merger, as a transferable instrument. The Agreement, as a transferable instrument, also applied to future employees covered by the scope of the Agreement and who were employed by SRG. Following the merger, GCS Integrated Services Pty Ltd was renamed as SRG Global Integrated Service Pty Ltd.
[6] Directions were issued by my chambers on 1 July 2025 (Directions). Pursuant to the Directions, SRG was required to serve:
The Application and any accompanying documents.
The Directions.
The materials filed by SRG in accordance with the Directions
on any employee organisation which ordinarily represented the interests of the Employees covered by the Agreement by 10 July 2025. The Directions required such organisations to provide their views on the Application to Chambers by 17 July 2025.
[7] Pursuant to the Directions, SRG filed a witness statement by Ms Melanie Covich (Ms Covich) confirming that the relevant materials had been served on the Construction, Forestry, Energy and Mining Union (CFMEU).
[8] Chambers did not receive any correspondence from the CFMEU or any employee organisation by 17 July 2025 or since.
[9] Sections 225 and 226 of the FW Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide that:
"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;
(c) an employee organisation covered by the agreement.
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 position of 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."
[10] The Application is made by SRG in its capacity as an employer covered by the Agreement. SRG have standing to make the Application.
[11] In the Declaration completed by Ms Jane Bourke (Ms Bourke). Ms Bourke states that
The Agreement was a site-specific agreement for employees of SRG engaged to perform work at the "Woodside Karratha Gas Plant and King Bay Supply Bases' (Project Location).
The Agreement has not covered any employees since 30 September 2022.
SRG no longer performs any work at the Project Location, nor does any of its associated entities.
SRG has not performed work on the Project Location since 30 September 2022 and has no plans to perform work at the Project Location the in future.
[12] Pursuant to the Directions, SRG filed a witness statement completed by Mr Kim Boyd (Mr Boyd), the Executive General Manager of SRG.
[13] Mr Boyd states that:
Around June 2022 SRG's client Woodside Energy Ltd advised SRG they had not been successful in the tender process in maintaining the contract for onsite services and they would be finishing on site in September 2022.
In July 2022 SRG had ten Employees on the contract (six full time and four casual) and commenced the consultation process of redundancies.
Two Administration Employees were successfully redeployed to other parts of the business, and the remaining eight Employees were terminated.
SRG have not had any Employees engaged on Woodside since September 2022.
SRG have not tendered on any work for Woodside and do not anticipate tendering on any in the near future.
[14] Ms Bourke, Mr Boyd and Ms Covich state that there are no Employees covered by the Agreement.
[15] Based on the evidence of Ms Bourke, Mr Boyd and Ms Covich, I am satisfied that the Agreement does not, and is not likely, to cover any employees and that the process for bargaining for a proposed new agreement has not commenced.
[16] SRG support the termination. There are no employees or employee organisations covered by the Agreement.
[17] I am satisfied that none of the criteria in s 226(4) apply and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s 226(5)).
[18] I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.
[19] The termination will operate from the date of this decision. An order to this effect will be issued with this decision.[1]
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