BIS Industries Limited

[2016] FWCA 9068

[2016] FWCA 9068

FAIR WORK COMMISSION

DECISION

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

BIS Industries Limited
(AG2016/7305)

BIS INDUSTRIES SOUTH WEST LOGISTICS ENTERPRISE AGREEMENT 2015

Road transport industry
DEPUTY PRESIDENT BINET	PERTH, 16 DECEMBER 2016

Application for termination of the Bis Industries South West Logistics Enterprise Agreement 2015.

[1] The Fair Work Commission (FWC) has received an application by BIS Industries Limited (Bis Industries) for the termination of the Bis Industries South West Logistics Enterprise Agreement 2015 (Agreement)pursuant to section 222 of the Fair Work Act 2009 (FW Act) (Application).

[2] The Agreement is a single enterprise agreement with a nominal expiry date of 30 June 2017.

[3] There are no employee organisations covered by the Agreement.

[4] Sections 220, 221, 222 and 223 of the FW Act state:

“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) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

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.”

[5] The Application was made on 26 November 2016, twelve days after the voting process concluded.

[6] The Application supported by a statutory declaration by Mr Edmund De Wet (De Wet Statutory Declaration).

[7] The De Wet Statutory Declaration states that a memorandum announcing the voting method, ballot box location and ballot period was distributed to all employees on 4 November 2016 and was followed up with email, text, telephone call or conversation to/with each employee. Based on the information contained in the De Wet Statutory Declaration, employees had the period of time from receipt of the memorandum until 14 November 2016 to decide whether they wanted to approve the termination of the Agreement. According to the De Wet Statutory Declaration, nine employees were covered by the Agreement and 7 voted in favour of terminating the Agreement.

[8] On 29 November 2016, directions were issued to Bis Industries (Directions)directingthem to provide a copy of the Application, the De Wet Statutory Declaration and these Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the FWC by close of business on Wednesday 14 December 2016 with advice to that effect. The parties were advised that in the absence of any such contact being made, I may reach a conclusion about this Application on the material before me.

[9] On 6 December 2016, Mr De Wet filed a statutory declaration confirming that a copy of the Application, the De Wet Statutory Declaration and the Directions had been provided to all employees whose terms of employment are regulated by the Agreement.

[10] No applications to be heard were received by any employees of Bis Industries on or before close of business on Wednesday 14 December 2016.

[11] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that Bis Industries has complied with its obligations under subsection 220(2), that the termination was agreed to by a majority of employees in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the employees have not agreed to the termination. I therefore must approve the termination of the Agreement.

[12] The termination will come into effect on the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE414735  PR588690>