Beebo Constructions Pty Ltd

[2012] FWA 10713

[2012] FWA 10713

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Beebo Constructions Pty Ltd
(AG2012/13879)

COMMISSIONER BULL SYDNEY, 21 DECEMBER 2012

Application to terminate the Beebo Pty Ltd Employee Collective Agreement 2008.

[1] An application has been made pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Beebo Constructions Pty Ltd Employee Collective Agreement 2008 (the Agreement). The Agreement is a collective agreement-based transitional instrument as defined under the Schedule 3 Item 2(5) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 with a nominal expiry date of 25 March 2014. Item 15 of that Schedule provides that for the purposes of applying under the Act to terminate such an instrument, a reference to an enterprise agreement is to be taken to include a collective agreement-based transitional instrument. Accordingly, the Applicant, Beebo Constructions Pty Ltd, is required to satisfy the requirements of Subdivision C of Division 7 of Part 2-4 of the Act in order for the Agreement to be terminated.

[2] The relevant provisions of the Act provide:

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or

(b) ...

(2) A termination of an enterprise agreement has no effect unless it is approved by FWA under section 223.


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) ...

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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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 states that the termination was agreed to on 26 November 2012. Pursuant to s.222(3)(a) the application was made within 14 days after the termination was agreed to.

[4] Consistent with the procedural rules, the Form F28 application was accompanied by a statutory declaration made by an appropriate person authorised by the Applicant, Mr Simon Sweetapple, Director of Beebo Constructions Pty Ltd.

[5] Mr Sweetapple’s declaration states that each employee covered by the Agreement was given a notice by email dated 16 November 2012. A copy of the email was provided to the Tribunal. The email explained that the company intended to apply to Fair Work Australia to have the Agreement terminated. It outlined the process the company needed to follow to terminate the Agreement and asked that the employees vote via return email by 23 November 2012. In these circumstances I find that s.220 of the Act has been satisfied.

[6] The employer’s declaration states that more than 75% of the employees voted in favour of the termination. Accordingly, I am satisfied that the termination of the Agreement was agreed to pursuant to s.221 of the Act.

[7] In light of the above findings, ss.223(a) and (b) have been satisfied. I have no reason to believe that the employees have not agreed to the termination, and there are no employee organisations covered by the Agreement. I have had regard to all of the factors in s.223 of the Act and I am satisfied that all the requirements have been met.

[8] I approve the termination of the Agreement. Pursuant to s.224 of the Act the termination of the Agreement will operate from the date of this decision.

COMMISSIONER

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