Alcomm Installations Pty Ltd

[2019] FWCA 3374

[2019] FWCA 3374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 222 - Application for approval of a termination of an enterprise agreement

Alcomm Installations Pty Ltd
(AG2019/1110)

ALCOMM INSTALLATIONS ENTERPRISE AGREEMENT 2014

Electrical contracting industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 16 MAY 2019

Application for termination of the Alcomm Installations Enterprise Agreement 2014

[1] On 9 April 2019, Alcomm Installations Pty Ltd (the applicant employer or Alcomm)made an application to terminate the Alcomm Installations Pty Ltd Enterprise Agreement 2014 (the Agreement) under section 222 of the Fair Work Act 2009 (the FW Act).

[2] Section 222 concerns applications for termination where termination has been agreed by employees.

[3] I conducted a directions hearing of the matter on 6 May 2019 and I issued directions on that day.

[4] This matter was the subject of a hearing on 16 May 2019 at which time I heard from Mr Stewart Bremner, Director of Alcomm, on behalf of the applicant employer.

[5] The applicant employer is entitled to apply for termination of the Agreement pursuant to section 222 of the FW Act.

[6] Sections 222 and 223 of the FW Act state:

“222 Application for FWC 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 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 FWC considers it fair to extend that period—within such further period as FWC allows.

223 When 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.”

[7] The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 5 March 2014 1. It was approved to operate from 13 March 2014 with a nominal expiry date of 1 February 2017. It has now passed its nominal expiry date. It is an agreement directly with employees. No industrial organisation is covered by it.

[8] In accordance with my directions, employees covered by the Agreement were provided an opportunity to indicate whether any objection would be taken to the termination application or if they sought to be heard. No objection has been indicated and no employee has sought to be heard.

[9] I have considered the material provided in the application and by Mr Bremner pursuant to section 223 of the FW Act. This includes the Statutory Declaration of Mr Bremner lodged with the Commission on 17 April 2019 and the submissions made on 6 May and 16 May 2019. I note that the Statutory Declaration of Mr Bremner says a toolbox meeting was held on 28 March 2019, at which time employees voted to terminate the Agreement. I also note that on 10 May 2019 a further meeting of employees was convened at which each reaffirmed in writing their decision to seek termination of the Agreement.

[10] On 13 May 2019, by email to the Commission, Mr Bremner indicated that employees were provided the Notice of Listing, as directed, on 7 and 8 May 2019.

[11] In proceedings before me on 16 May 2019, Alcomm indicated that the employers intention was, should the Agreement be terminated, to use the existing Agreement as a basis for employment arrangements of existing employees and do so subject to the operation of the National Employment Standards and underlying modern award. The employer further extended this undertaking to any new employees who would have been employed under the Agreement but for its termination.

[12] I am satisfied as to each of the matters contained in section 222 and 223 of the FW Act.

[13] Accordingly, it is appropriate to terminate the Agreement. I approve its termination.

[14] The termination will come into effect from 11.59pm on 16 May 2019. An Order to this effect will be issued.

DEPUTY PRESIDENT

 1   [2014] FWCA 1502

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