Apprentices Trainees Employment Limited T/A ATEL Employment Services

[2019] FWCA 7660

[2019] FWCA 7660

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Apprentices Trainees Employment Limited T/A ATEL Employment Services
(AG2019/3673)

ATEL STAFF EMPLOYMENT AGREEMENT [2001]

Clerical industry
COMMISSIONER GREGORY	MELBOURNE, 12 NOVEMBER 2019

Application for termination of the ATEL Staff Employment Agreement.

[1] An application has been made pursuant to Item 15 in Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the ATEL Staff Employment Agreement [2001] (the Agreement). The nominal expiry date of the Agreement is 17 April 2003.

[2] The relevant legislation provides that I must approve the termination of the Agreement if I am satisfied that each of the requirements of section 223 of the Fair Work Act 2009 (the Act) have been met. Section 223 provides as follows:

“223 When FWA 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.”

[3] Section 220 also states:

“(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve the 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.”

[4] Section 221 continues to state in regard to a 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 vote approve the termination.”

[5] A statutory declaration of Ms Alison Louise Franks, Team Leader Human Resources & Work Health & Safety at Apprentices Trainees Employment Limited T/A ATEL Employment Services (ATEL Employment Services), accompanied the application. The statutory declaration indicates that on 15 August 2019 an email and meeting invitation was sent to all ATEL Employment Services’ employees to commence discussions regarding the Agreement. These meetings were held on the 16 August 2019, 29 August 2019, 30 August 2019, 2 September 2019, 3 September 2019 and 4 September 2019. On 4 September 2019 an email was sent to all employees including a letter with the time, place and method of vote, a copy of the Agreement, the National Employment Standard (NES) information statement, a draft contract of employment, the new draft annual leave policy, the redundancy fact sheet from the Fair Work Commission (the Commission) website, the maximum hours fact sheet from the Commission website and an electronic calendar invitation to the vote, including the details of where, when and how the vote would take place. The letter attached to the email was entitled “Re: ATEL Staff Agreement” and advised that in connection with the expiry of the Agreement, ATEL Employment Services was intending to have the employees’ terms and conditions of employment covered by those contained in current legislation and industrial practices.

[6] The statutory declaration of Ms Franks continues to state that further to sending the initial email on 15 August 2019, the meetings on the aforementioned dates and the email with attachments sent on 4 September 2019, an internal Sharepoint Q&A page was created on 5  September 2019. Ms Franks also states that an email reminder was sent to all employees on 10 September 2019, confirming details of the vote to take place. Further to this, Ms Franks states that meetings with certain employees were held on 6 September 2019, 9 September 2019, 10 September 2019 and 11 September 2019 to hold discussions around individual impacts and concerns.

[7] As stated in Ms Franks’ statutory declaration, on 12 September 2019, voting on the termination of the Agreement commenced and concluded. In the letter sent to staff via email on 4 September 2019, it is stated that the vote would take place as follows:

“On Thursday the 12th of September 2019 at 10.30am, you will be required to vote by private ballot at each of your sites each yes to support to the application to terminate the Staff agreement or no to not support the termination of the Staff agreement.”

[10] Ms Frank’s declaration concluded by stating that termination of the Agreement was agreed to on 12 September 2019, after 33 of the 34 employees covered by the Agreement voted, with the final result indicating that 21 out of the 33 employees voted to terminate the Agreement.

[11] Having considered the terms of the statutory declaration provided by Ms Franks, I am satisfied, firstly, that the provisions contained in s.220 of the Act have been satisfied in that the employer has requested that the employees consider the proposed termination of the agreement that covers them and, secondly, before making that request the employer has taken all reasonable steps to notify the employees about the time and place at which the vote will occur, and the voting method that will be used. I am also satisfied that this process has given the employees a reasonable opportunity to decide whether they want to approve the proposed termination of the agreement.

[12] I am accordingly satisfied that the majority vote of the employees in favour of termination confirms that termination of the agreement has been agreed to. I am also satisfied that there are no other reasonable grounds for believing the employees have not agreed to termination of the agreement.

[13] I am satisfied, in conclusion, that the termination of the Agreement must be approved under s.223 of the Act and in accordance with s.224 the termination operates from the date of this decision.

COMMISSIONER GREGORY

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