Application by Kalari Pty Ltd
[2024] FWC 2155
•16 AUGUST 2024
| [2024] FWC 2155 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Application by Kalari Pty Ltd
(AG2024/2773)
| COMMISSIONER HUNT | BRISBANE, 16 AUGUST 2024 |
Application for termination of the Kalari Pty Ltd Gladstone Workshop Enterprise Agreement 2022
On 23 July 2024, Kalari Pty Ltd (the Employer) made an application to the Commission in accordance with s.222 of the Fair Work Act 2009 (the Act) to terminate the Kalari Pty Ltd Gladstone Workshop Enterprise Agreement 2022 (the Agreement).
The Agreement was approved by me on 25 August 2022.[1] It is a single enterprise agreement. The Agreement has a nominal expiry date of 1 September 2025.
The application was accompanied by a Form F24A Declaration in support of termination of an enterprise agreement made by Ms Kate Barrett, the Employer’s People and Capability Manager. Ms Barrett declared, amongst other things, that there are no employees covered, or likely to be covered, by the Agreement.
On 29 July 2024, I communicated with the Employer advising of my preliminary view that the application is not made in accordance with ss.220 to 223 as the termination was and cannot be agreed to on account of there being no employees with which to agree.
I also noted that an application under s.225 of the Act cannot be made on the basis that the nominal expiry date has not yet been reached. I invited the Employer to provide a response by 5 August 2024. The Employer did not correspond with my chambers.
I caused my chambers to follow up the Employer, directing their response by 9 August 2024. The Employer failed to respond. I have therefore considered it appropriate to determine the matter on the papers.
Relevant Legislation
In determining whether I must terminate the Agreement, I must have regard to sections 220 to 223 of the Act, as produced below:
“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.
Multi‑enterprise agreement
(2) If the employees of each employer covered by a multi‑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 of each individual employer who cast a valid vote have approved 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.”
Consideration
I am not satisfied that having regard to ss.220 to 223, the application has been made pursuant to s.222 of the Act. The Employer has declared that there are no employees covered by the Agreement. Therefore I am satisfied that the Employer is unable and cannot conduct a vote in accordance with s.220 of the Act nor can employees agree to the termination of the Agreement as required under s.221 of the Act.
I do not approve the termination of the Agreement and dismiss the application.
If it remains the desire of the Employer to apply to the Commission to terminate the Agreement, it may do so after the Agreement has passed its nominal expiry date.
COMMISSIONER
[1] [2022] FWCA 2930.
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