Australian Professional Shopfitters Pty Ltd

[2020] FWCA 5213

[2020] FWCA 5213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Australian Professional Shopfitters Pty Ltd
(AG2020/2783)

AUSTRALIAN PROFESSIONAL SHOPFITTERS PTY LTD AND THE CFMEU SHOP FITTING MANUFACTURING ENTERPRISE AGREEMENT 2015-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 SEPTEMBER 2020

Application for termination of the Australian Professional Shop Fitters Pty Ltd and the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2015-2018

[1] This decision concerns an application made by Australian Professional Shopfitters Pty Ltd (company) to terminate the Australian Professional Shop Fitters Pty Ltd and The CFMEU Shop Fitting Manufacturing Enterprise Agreement 2015-2018 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees covered by the Agreement that agreed to the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date was 31 March 2018.

[3] The CFMMEU is covered by the Agreement. On 28 September 2020, the CFMMEU advised my chambers that it did not wish to be heard in relation to the application.

[4] The relevant provisions of the Act are as follows:

“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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[5] Based on the material provided to the Commission by the company, including the statutory declaration of Ms Deborah Peppard, which was filed with the application, I am satisfied that each of the requirements in s 223 of the Act has been met. I am satisfied that the company complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as a majority of employees who cast a valid vote approved the termination. I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[6] Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement. The termination will operate from 6 October 2020.

[7] An order giving effect to this decision will be issued separately in PR723185.

DEPUTY PRESIDENT

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