Australian Aluminium Finishing Pty Limited

[2021] FWCA 4370

[2021] FWCA 4370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Australian Aluminium Finishing Pty Limited
(AG2021/6289)

AAF GEEBUNG SITE AGREEMENT 2017 - 2020

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 23 JULY 2021

Application for termination of the AAF Geebung Site Enterprise Agreement 2017-2020.

[1] Australian Aluminium Finishing Pty Limited (the Applicant) filed an application under s.222 of the Fair Work Act (the Act). The application is for the termination of the AAF Geebung Site Agreement 2017-2020 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“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.”

[3] The Applicant provided submissions in support of the application. The Applicant submitted that the Agreement covers employees located at the Geebung site who are engaged in certain classifications under the Agreement, and that the Agreement also covered the Australian Workers’ Union.

s.220(2) of the Act

[4] The Applicant submitted that from about 25 May 2021, discussions were held between local management at the Geebung site and the AWU delegate in relation to the operation of the Agreement compared to the Award.

[5] The Applicant confirmed that on 25 May 2021 a meeting was held with local management and employees at the Geebung site to discuss the termination of the Agreement and to ascertain whether there was support from employees if there was a formal proposal from the Applicant to terminate the Agreement. Employees indicated their support for the Agreement to be terminated.

[6] The Applicant submitted that the AWU organiser, Mr Jim Wilson attended the Geebung Site in June 2021. Mr Wilson met with members in relation to the discussions which had taken place in relation to the termination of the Agreement.

[7] The Applicant submitted that it took reasonable steps to notify employees of the time and place at which the vote would occur and the voting method to be used. On 1 July 2021, a notice was placed on the noticeboard advising employees of the Applicant’s proposal to terminate the Agreement, by agreement with employees.

[8] The Applicant submitted that the notice set out the following:

a) That employees would be asked to vote on whether or not they accepted the proposal to terminate the Agreement and revert to the Award.

b) The consequences of termination of the Agreement on employees.

c) That the vote would take place on 9 July 2021 (or such other date as advised if there was a delay) by secret ballot.

d) That the place of the vote was in the Geebung site office.

e) That on the day of the vote, employees would be able to attend the Geebung office, privately complete a voting slip and place their completed voting slip in the ballot box.

[9] It was submitted on behalf of the Applicant that the notice also set out that for the proposal be successful, a simple majority vote was required, whereby if more than 50% of eligible employees voted in favour of the proposal to terminate the Agreement, then the Applicant would apply to the Commission for termination of the Agreement by agreement. A copy of this notice was provided to the Commission.

[10] The Applicant also submitted that it provided employees with a reasonable opportunity to decide whether they wanted to approve the proposal to terminate the Agreement per subsection 220(2)(b) of the Act, through discussion and consultation that took place with employees at the Geebung site at a local level, in relation to termination of the Agreement. The AWU organiser also visited the Geebung site to discuss termination of the Agreement with members.

[11] The Applicant set out that the notice set out the consequences on employees if the Agreement was terminated. In the notice, the Applicant outlined that the more generous conditions under the Agreement in comparison to the Award would be preserved for existing employees, including preserving the above-Award rates of pay employees received. In relation to pay increases, the Applicant confirmed that it would pass on any percentage increase to the Award minimum wages from the Commission’s annual wage review decision. The increases would apply to the employee’s current rates of pay.

[12] The Applicant submitted that it had complied with subsection 220(2) of the Act. The Applicant confirmed that the notice was issued to employees on 1 July 2021 and voting commenced on 9 July 2021. Copies of the Agreement and the Award were issued with the notice and placed on the notice board on 1 July 2021 for consideration by employees.

s.221(1) of the Act

[13] The Applicant submitted that the Agreement covers 12 employees at the Geebung site and all 12 employees cast a vote in favour of approving the termination of the Agreement. A copy of the attendance list signed by employees showing employee participation in the vote was provided to the Commission.

[14] The Applicant further submitted that the termination of the Agreement was agreed to when the votes were counted on 12 July 2021.

No other reasonable grounds

[15] The Applicant submitted that there were no other reasonable grounds for believing that employees have not agreed to the proposal to terminate the Agreement.

[16] The Applicant stated that the Agreement incorporated the terms of the Award, and where the Agreement’s terms were more generous than the Award, the Applicant has agreed to preserve the conditions for existing employees.

Statutory declaration of Robert McMurtry

[17] Mr Robert McMurtry, Financial Controller of the Applicant, provided a statutory declaration in support of the application. In his declaration, Mr McMurtry outlined the process taken for the employees to approve the termination of the Agreement.

[18] In respect of s.220(2)(b), and whether the employees were given a reasonable opportunity to decide whether they wanted to approve the termination, Mr McMurtry set out the notification and meeting dates. Mr McMurtry stated that discussions were held regarding termination of the Agreement with the Australian Worker’s Union (AWU) delegate on 25 May 2021, and with the AWU representatives on 10 June 2021.

[19] Mr McMurtry outlined that the employees were consulted with about the termination of the Agreement on 25 May 2021. On the 1 July 2021, a memorandum was issued to notify relevant employees that a vote would take place regarding the termination the Agreement. The employees were provided with a copy of the Award and Agreement for review. The memorandum outlined the effects of terminating the Agreement on the employees’ wages and conditions. The Applicant agreed to retain any conditions in excess of the Award.

[20] Mr McMurtry stated that the vote took place on 9 July 2021, and that of the 12 employees who were covered by the Agreement, 12 votes were cast. A majority of voters voted ‘yes’ to terminate the Agreement, with all 12 votes in favour of termination. Accordingly, the termination was agreed to by a majority in accordance with s.221(1).

[21] There are no other reasonable grounds for considering that the employees have not agreed to the termination. Upon termination of the Agreement, the employee will be covered by the Manufacturing and Associated Industries and Occupations Award 2020.

[22] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[23] In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

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