Bidfood WA Pty Ltd T/A Bidfood Fresh Perth

[2019] FWCA 4975

[2019] FWCA 4975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Bidfood WA Pty Ltd T/A Bidfood Fresh Perth
(AG2019/2152)

BIDFOOD FRESH PERTH - ENTERPRISE AGREEMENT 2018

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DEPUTY PRESIDENT BEAUMONT	PERTH, 29 JULY 2019

Application for termination of the Bidfood Fresh Perth - Enterprise Agreement 2018.

[1] On 21 June 2019, Bidfood WA Pty Ltd (the Applicant) applied under s 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Bidfood Fresh Perth - Enterprise Agreement 2018 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated under s 222; it provides:

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 Mr Mik Allie, who is the Branch Manager of the Applicant.

[4] Mr Allie declared that on 16 June 2019, a notice of intention to conduct the ballot (Notice)was provided to all employees. This Notice explained that information sessions would be held at various locations on 16 and 17 June 2019. It notified employees that the vote was to occur at the Applicant’s Branch, between 10:00h and 17:00h on 20 June 2019. 1

[5] Mr Allie further declared that on 16 and 17 June 2019, he and Mr David D’Arcy, Industrial Relations Advocate, conducted individual information sessions with the Applicant’s employees.

[6] In these information sessions, it is said that Mr Allie explained the effect that the termination of the Agreement would have on each individual employee, and provided a comparison between the current and future (should the Agreement be terminated) terms and conditions of employment. 2

[7] Copies of the Agreement and relevant awards were made available to the employees in the lunchroom, and were posted on the staff noticeboard. Employees were told they could also request copies of the relevant materials from Mr Allie or Mr Ravinder Singh, the Returning Officer for the Ballot.

[8] Mr Allie declares that Mr Singh attended the meetings with employees for whom English is a second language and translated the content of the meeting for those employees. It is said that there of the 33 employees that were covered by the Agreement at the time of the vote, 17 were from non-English speaking backgrounds. 3

[9] Following these meetings, it is said that all employees were provided with a newsletter which reduced to writing the information discussed in the meetings and enclosed a comparison between the current and future rates of pay and other terms and conditions of employment, information regarding the vote, and information regarding the motivation for the termination of the Agreement. A copy of this newsletter was provided to the Commission in support of the Application. 4

[10] Mr Allie declares that he and Mr D’Arcy met with Mr Andrew Dul, Organiser for the Shop Distributive and Allied Employees’ Association (the SDA), on 17 June 2019. At this meeting it is said that Mr Allie explained and discussed the proposed termination of the Agreement with Mr Dul.

[11] A secret ballot was held on 20 June 2019 at the Applicant’s Branch. Mr Singh declares that 29 employees cast a valid vote, and of those 29 employees, 22 voted to terminate the Agreement. 5 A copy of the certificate declaring the result of the vote was provided to the Commission in support of the application.

[12] Following lodgement of the application for the termination of the Agreement, Mr Dul corresponded with Mr D’Arcy with regard to the termination of the Agreement. Mr Dul explained that it was the SDA’s understanding that its members believed they would be better off, and potentially gain employment by terminating the Agreement, 6 and based on this, the SDA did not oppose the termination of the Agreement.

[13] The National Union of Workers (NUW) was invited to provide their views on the application on 18 July 2019. They were provided until 22 July 2019 to provide their view. However, by the date of this decision, no response has been received.

Consideration

[14] Section 220 of the Act provides that employers may request employees vote to approve the termination of an enterprise agreement. In determining whether the Agreement should be terminated, I must be satisfied that the Applicant took all reasonable steps to notify the employees of:

a) the time and place at which the vote will occur;
b) the voting method that will be used; and
c) that employees were given reasonable opportunity to decide whether they wanted to approve the termination of the Agreement. 7

[15] Having considered the material before me, including the statutory declaration of Mr Allie, and annexures thereto, I am satisfied that Applicant requested that the employees vote to approve the termination of the Agreement, and in doing so, took all reasonable steps to notify the employees of the method, and time and place where the vote would occur. 8

[16] The employees were notified of the details of the vote on 16 June 2019. On the same and following day, detailed information was provided by the Applicant to the employees which outlined the motivation behind the termination of the Agreement, and the likely effect of the same on the employees. I am satisfied that the employees were provided with a reasonable opportunity to decide whether they wanted to approve the termination of the Agreement prior to the vote on 20 June 2019.

[17] Based on Mr Allie’s Statutory Declaration and the declaration of the Returning Officer, I am satisfied that the termination was agreed to. 9

[18] I am satisfied that there are no other reasonable grounds to believe that the employees have not agreed to the termination; 10 and having considered the views of the SDA, and observing that the NUW did not provide its view albeit given the opportunity to do so, I have decided it is appropriate to approve the termination of the Agreement.11

Conclusion

[19] The requirements of s 223 have been met and, in accordance with s 223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[20] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

 1   Stat Dec Annexure A

 2   Stat dec 2.1

 3   Stat Dec 3.3

 4   Stat Dec Annexure A

 5   Certificate of Returning Officer – Declaration of Ballot.

 6   Email correspondence from Mr Dul, received 27 June 2019.

 7   Fair Work Act 2009 (Cth) s 220(2)

 8 S 223(a)

 9 S 223 (b)

 10 S 223(c)

 11 S 223 (d)

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