AT-PAC Group Pty Ltd

[2016] FWCA 7969

[2016] FWCA 7969

FAIR WORK COMMISSION

DECISION

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

AT-PAC Group Pty Ltd
(AG2016/6158)

AT-PAC EMPLOYEEE COLLECTIVE SCAFFOLDING YARD ENTERPRISE AGREEMENT 2015

Storage services
DEPUTY PRESIDENT BINET	PERTH, 4 NOVEMBER 2016

Application for termination of the AT-PAC Employee Collective Scaffolding Yard Enterprise Agreement 2015.

[1] The Fair Work Commission (FWC) has received an application by AT-PAC Group Pty Ltd (AT-PAC Group) for the termination of the AT-PAC Employee Collective Scaffolding Yard Enterprise Agreement 2015 (Agreement)pursuant to section 222 of the Fair Work Act 2009 (FW Act) (Application).

[2] The Agreement is a single enterprise agreement with a nominal expiry date of 28 May 2019.

[3] There are no employee organisations covered by the Agreement.

[4] Sections 220, 221, 222 and 223 of the FW Act state:

“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.”

[5] The Application was supported by a statutory declaration by Mr James Robinson (Robinson Statutory Declaration).

[6] On 13 October 2016, directions were issued to AT-PAC Group (Directions)directingthem to provide a copy of the Application, the Robinson Statutory Declaration and these Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the FWC by close of business on Thursday 27 October 2016 with advice to that effect. The parties were advised that in the absence of any such contact being made, I may reach a conclusion about this Application on the material before me.

[7] On 21 October, Mr Robinson filed a statutory declaration confirming that a copy of the Application, the Robinson Statutory Declaration and the Directions had been provided to all employees whose terms of employment are covered by the Agreement.

[8] No applications to be heard were received by any employees of AT-PAC Group on or before close of business on Thursday 27 October 2016.

[9] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that AT-PAC Group has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the employees have not agreed to the termination. I therefore must approve the termination of the Agreement.

[10] The termination will come into effect on the date of this decision.

DEPUTY PRESIDENT

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