Adbri Masonry Pty Ltd T/A Adbri Masonry Pty Ltd

Case •

[2024] FWCA 3405

•

27 SEPTEMBER 2024
[2024] FWCA 3405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Adbri Masonry Pty Ltd T/A Adbri Masonry Pty Ltd

(AG2024/3145)

ADBRI MASONRY (MOOREBANK & NEWCASTLE) ENTERPRISE

Agreement 2021

Manufacturing and associated industries

DEPUTY PRESIDENT GRAYSON

SYDNEY, 27 SEPTEMBER 2024

Application for termination of the Adbri Masonry (Moorebank & Newcastle) Enterprise Agreement 2021

  1. On 16 August 2024, Adbri Masonry Pty Ltd T/A Adbri Masonry Pty Ltd (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Adbri Masonry (Moorebank & Newcastle) Enterprise Agreement 2021 (Agreement).

  1. The Agreement is a single enterprise agreement. It was approved by Deputy President Dean on 8 September 2021.[1]

  1. The nominal expiry date of the Agreement is 30 June 2024.

Legislation

  1. The relevant provisions of the Act are as follows:

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1)An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2)Before making the request, the employer must:

(a)     take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3)Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single‑enterprise agreement

(1)If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1)If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)The application must be made:

(a)     within 14 days after the termination is agreed to; or

(b)     if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a)     the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b)    the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c)     the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)     the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

Consideration – s.222 of the Act

Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?

  1. Clause 1c. of the Agreement provides that the Agreement applies to:

i.    The Employer Adbri Masonry Pty Ltd.

ii.   The Employees of the Company based at Moorebank and Newcastle.

iii.    Australian Workers Union (AWU) Greater New South Wales Branch

  1. Having considered the materials before me, I am satisfied that:

(a)The Application was made by an employer covered by the Agreement; and,

(b)The Applicant has standing to make the Application.

Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?

  1. The Application is accompanied by a ‘Form F24A – declaration in support of termination of an enterprise agreement’ (Form F24A). Accordingly, as the Application is accompanied by the material required by the Fair Work Commission Rules 2024, I am satisfied that the requirements of s.222(2) of the Act have been met.

Has the Application been made within the required timeframe per s.222(3)(a)?

  1. Section 222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines that in all the circumstances it would be fair to extend that period, such period as the Commission allows.

  1. It is declared in the Form F24A that the termination was agreed on 16 August 2024. The Commission’s records show that the Application was filed on 16 August 2024, which is within 14 days after the termination was agreed. I am satisfied that the requirements of s.222(3) of the Act have been met.

Consideration – s.223 of the Act

  1. I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

Section 220(2) of the Act

  1. Section 223(a) requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement.

Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?

  1. The Form F24A declared that the singular employee covered by the Agreement was informed of the date, time and process for the vote to terminate the Agreement by way of a letter provided to him on 7 August 2024. The vote commenced on 16 August 2024.

  1. Having considered the material before the Commission, I am satisfied that before requesting that the employee vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employee of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.

Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?

  1. It is declared on the Form F42A that there is one employee of the Applicant who is covered by the Agreement, and that this employee was provided with a document that indicated that the Applicant had commenced the process of terminating the Agreement. The date that this document was stated to have been provided on the Form 24A was initially 1 July 2024. The Applicant sought to correct this date when subsequently filing material responsive to directions issued by the Commission, indicating that the document had been provided to the employee covered by the Agreement on 9 July 2024. The Applicant filed a corrected Form F24A reflecting this which I allow to be filed pursuant to s.586(a) of the Act.

  1. At the time of this document being issued, the Applicant had lodged an alternative application to terminate the Agreement which had been allocated to Deputy President Saunders. The letter indicates that Ms Dara Malesevic, Human Resources Business Partner, and the employee had met on 27 May 2024 and 26 June 2024 and discussed the matter of the termination of the Agreement, noting as follows:

In line with our discussions, this letter is to confirm that Adbri Masonry Pty Ltd has commenced the process to terminate [the Agreement] with the Fair Work Commission. You would have received via email, evidence of the submission (a copy of this submission alongside the Form24B and Form24C was sent to you on 1 July 2024).

  1. The letter refers to directions made by Deputy President Saunders in relation to that application, which provided that employees covered by the Agreement proposed to be terminated were to advise the Commission of any objections to the Agreement’s termination by 4:00 PM on 17 July 2024. The letter is countersigned and dated 9 July 2024 by hand by the employee covered by the Agreement. The Applicant also filed a letter dated 9 July 2024 and signed by the employee and addressed to Deputy President Saunders which provides that he was supportive of the termination of the Agreement and believed that the terms and conditions of his employment under the Award and his employment contract were better than the Agreement. It is noted that the application that this letter was referring to was subsequently withdrawn and a fresh application filed, being the application which is before me for determination.

  1. The Form F24A declares that the employee covered by the Agreement was provided with a notice of the voting period to approve the termination of the Agreement by letter. Although the Form F24A states that this document was provided on 7 August 2024, I note that the letter itself is dated 8 August 2024 and that the Applicant’s subsequent email to my Chambers indicated that this letter was provided to the employee on 8 August 2024.

  1. The letter providing notice of the voting period informed the employee that the vote would commence at 6:00 AM on 16 August 2024 and close at 2:06 PM on the same day. The letter also indicates that the access period would be eight days in length and that at the close of the vote, a Company representative and the employee would tally the votes and provide their signatures on a declaration of the result and the result would be provided to employees. The letter also includes a high-level summary of the main changes between the Agreement and the relevant Modern Award, being the Manufacturing and Associated Industries Award 2020 (Award). These changes include:

  • The employee’s contract of employment would be underpinned by the Award and the National Employment Standards (NES) instead of the Agreement;

  • The employee’s classification would be C10 under the Award, but his job title would remain ‘Site Operator’;

  • The employee would receive the following above-Award entitlements arising from his employment contract;

oAn hourly rate increase to $31.00, which is noted as a rate higher than provided by the Agreement or the Award, and in satisfaction of ‘any other monetary amounts payable under the Modern Award unless specifically provided for in the employment contract’ except the First Aid allowance;

oThe employee would be paid a First Aid Allowance of $4.18 per day, until the First Aid Allowance under the Award exceeded this rate; and,

oClause 5 of the Agreement in relation to the payment of unused personal/carer’s leave would be retained for the duration of the employee’s employment.

  1. The letter specifically provides:

Please take this time to review the changes carefully. We note that the above list is not exhaustive and encourage you to review the [Award] to ensure understanding of the new instrument that is proposed to cover your employment.

  1. Having considered the documents and submissions filed by the Applicant, I am satisfied that the Applicant has given the employee a reasonable opportunity to decide whether they want to approve the proposed termination of the Agreement.

Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?

  1. Section 223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.

  1. The Form F24A declares that there was one employee covered by the Agreement and that this employee cast a valid vote to approve the termination of the Agreement. The supporting documents filed by the employer are consistent with the employee having cast a valid vote to approve the termination of the Agreement.

  1. Having considered the material before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.

Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

  1. There is no material before me indicating that there are any other reasonable grounds for believing that the employee has not agreed to the termination, and I am accordingly satisfied in relation to s.223(c).

Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)

  1. The Australian Workers’ Union (AWU) is a bargaining representative covered by the Agreement. Pursuant to directions issued by my Chambers, the Applicant filed a statutory declaration that the documents on which it relied in support of its application were provided to the AWU and to the employee covered by the Agreement.

  1. The AWU advised the Commission on 23 September 2024 that they did not wish to be heard in relation to the application.

Conclusion

  1. Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.

  1. No submissions in opposition were filed.

  1. Section 224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.

  1. In accordance with s.224 of the Act, the termination will come into effect from 27 September 2024.

  1. An Order to this effect has been issued concurrently with this decision.

DEPUTY PRESIDENT


[1] [2021] FWCA 5636.

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