Austunnel Pty Ltd

[2018] FWCA 2353

[2018] FWCA 2353

FAIR WORK COMMISSION

DECISION

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

Austunnel Pty Ltd
(AG2017/6708)

AUSTUNNEL PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 APRIL 2018

Application for termination of the Austunnel Pty Ltd Enterprise Agreement 2016.

[1] On 22 December 2017, Austunnel Pty Ltd (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Austunnel Pty Ltd Enterprise Agreement 2016 (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. Section 223 of the Act is as follows:

‘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 application was supported by a statutory declaration from the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[4] In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] The Employer also made an application for approval for a new enterprise agreement in AG2017/6702. The effect of s.58(d) of the Act is that the new agreement will not commence operation because this Agreement has not passed its nominal expiry date.

[6] The new agreement was approved today in [[2018] FWCA 2352] to come into force on 3 May 2018. In accordance with the Employer’s request, the termination of the Agreement, the subject of this decision, will take effect from 3 May 2018.

COMMISSIONER

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