BIS Industries Limited

[2015] FWC 5352

[2015] FWC 5352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

BIS Industries Limited
(AG2015/3492)

COMMISSIONER WILLIAMS PERTH, 5 AUGUST 2015

Application for termination of the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014.

[1] This decision concerns an application made by BIS Industries Limited (the applicant) for the termination of the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014 [AE411427] (the Agreement).

[2] This application is made under section 222 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement where the termination has been agreed by a majority of employees of that employer casting a valid vote to approve the termination. The relevant provisions of the Act are set out below.

“Subdivision C—Termination of enterprise agreements by employers and employees

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) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by the FWC

(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.
Limitation—greenfields agreement

(3) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

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.”

[4] The applicant has provided in support of its application a statutory declaration from MS Tania Sidoruk (Ms Sidoruk) who is an Employee Relations Adviser with the applicant.

[5] Ms Sidoruk’s explains that the Agreement has a nominal expiry date of 31 October 2018.

[6] Ms Sidoruk declares that since 11 July 2015 the applicant ceased to employee anybody covered by the Agreement. This was a consequence of Fortescue Metals Group Limited terminating the commercial contracts with the applicant to perform work at the Cloudbreak mine site. Given there are no employees covered by the Agreement the applicant has been unable to request employees to vote and approve the termination of the Agreement.

Consideration

[7] The scheme of the Act set out in section 219 through to section 224 is expressly and exclusively based upon an employer and their employees covered by an agreement jointly agreeing to terminate that enterprise agreement.

[8] Section 223 (a) of the Act requires the Commission to be satisfied that the employer took all reasonable steps to notify employees of the time, place and method for voting and gave them a reasonable opportunity to decide whether they wanted to approve the proposed agreement termination. In addition section 223 (b) of the Act requires the Commission to be satisfied that a majority of the employees covered by the Agreement voted to approve its termination.

[9] In the current circumstances, where there are no employees covered by the Agreement, it would be wholly artificial for the Commission to decide that it was satisfied the requirements in sections 223 (a) and (b) have been met.

[10] In the absence of there being employees covered by the Agreement who by a majority vote agreed to the terminate the Agreement the Commission has no power to terminate the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014.

[11] Consequently this application is hereby dismissed.

COMMISSIONER

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