Alsco Pty Ltd

[2022] FWCA 4191

[2022] FWCA 4191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Alsco Pty Ltd

(AG2022/4498)

Alsco Pty Ltd (Mulgrave Branch) Service Department Enterprise Agreement 2018

Dry cleaning and laundry services
COMMISSIONER WILSON	MELBOURNE, 2 DECEMBER 2022

Application for termination of the Alsco Pty Ltd (Mulgrave Branch) Service Department Enterprise Agreement 2018

1. On 26 October 2022 Alsco Pty Ltd (the Applicant) made an application to terminate the Alsco Pty Ltd (Mulgrave Branch) Service Department Enterprise Agreement 2018 (Agreement) under s 222 of the Fair Work Act 2009 (Cth) (FW Act).

1. Section 222 concerns applications for termination where termination has been agreed by employees.

1. The applicant employer is entitled to apply for termination of the Agreement under s 222 of the FW Act.

“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.

1. Section 223 provides:

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 s 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.”

1. The Agreement is a single enterprise agreement. It was approved by the Commission on 1 August 2018.[1] It was approved to operate from 8 August 2018 with a nominal expiry date of 30 June 2020.

1. I have considered the material provided in the application pursuant to s 223 of the FW Act. This includes the Form F24A – declaration in support of termination of an enterprise agreement (Form F24A) of Mr Steven Ewing lodged with the Commission on 27 October 2022 and the statutory declaration of Ms Kristie Alison O’Gorman dated 11 November 2022, lodged with the Commission on 11 November 2022.

1. I note that in the Form F24A Mr Ewing declares that, among other things, that of the 15 employees covered by the Agreement, 13 cast a valid vote and 9 voted to approve the termination of the Agreement. The termination was agreed to on 25 October 2022.

1. Mr Ewing further declares that information sessions were held to explain the termination of the Agreement and its replacement by the Award, and written explanatory materials were provided to employees. An initial vote was undertaken on 5 August 2022, at which the termination was not approved. Following this, additional information and consultation sessions were held with employees and the rate of pay which the employer stated would be provided to employees following the termination was increased from $30 to $31.50 per hour. The second vote, on 25 October 2022, was then successful.

1. On 11 November, the Applicant also provided a set of undertakings as to the representations made to employees in the explanatory materials regarding pay, conditions, and classification level. These undertakings are marked Annexure A and appended to this decision.

1. In the statutory declaration lodged with the Commission on 11 November 2022, Ms O’Gorman declared that, in response to the direction of the Commission, on 7 November 2022 employees were provided with a notice which outlined that Also Pty Ltd had made an application to the Fair Work Commission to terminate the Agreement and that if employees had an views to express that they should do so by way of correspondence to the chambers of Commissioner Wilson prior to 11 November 2022.

1. On 7 November anonymous correspondence was received by the Commission raising concerns about the process of the termination vote, and on 10 November correspondence was received from the Transport Workers’ Union which raised concerns of a similar nature. These concerns were put to the Applicant, who provided a response in the form of submissions on 16 November 2022. Further, on 18 November 2022 a direction was given by me to the effect that any opposing termination of the Agreement was to provide short particulars of their opposition and a witness statement dealing with any evidence they wish the Commission to take into account. On 28 November 2022, the Transport Workers’ Union advised that it did not intend to file any submissions or witness statement other than the objection that already provided, and that it did not intend to appear at a scheduled hearing.

I therefore determined a hearing was not necessary and proceeded to determine the matter on the papers.  On the basis of the Applicant’s submissions and the declarations provided by Mr Ewing I am satisfied that all relevant  concerns have been addressed.  In particular, I am satisfied on the evidence before me that a majority of the employees covered by the Agreement agreed to its termination and that there are no reasonable grounds for believing there is not agreement to its termination.

1. I am required to deal with this matter in accordance with the provisions of the FW Act. I am satisfied as to each of the matters contained in ss 222 and 223 of the FW Act.

1. It is appropriate to terminate the Agreement. I approve its termination. The termination takes effect from the date of this decision.

COMMISSIONER

Annexure A

[1] [2020] FWCA 3195

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