Brand Energy and Infrastructure Services (Gladstone) Pty Ltd

[2019] FWCA 775

[2019] FWCA 775

FAIR WORK COMMISSION

DECISION

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

Brand Energy and Infrastructure Services (Gladstone) Pty Ltd
(AG2018/6683)

BRAND ENERGY & INFRASTRUCTURE SERVICES (GLADSTONE) PTY LTD ALL SITES ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 26 FEBRUARY 2019

Application for termination of the Brand Energy & Infrastructure Services (Gladstone) Pty Ltd All Sites Enterprise Agreement 2017

[1] On 30 November 2018 Brand Energy and Infrastructure Services (Gladstone) Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Brand Energy & Infrastructure Services (Gladstone) Pty Ltd All Sites Enterprise Agreement 2017 (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 provides as follows:

“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 Form F24A statutory declaration made by Mr Jason Mills, Branch Manager of the Employer,which declared, amongst other things, that the 10 employees covered by the Agreement were notified of the time and place of the vote and that of the eight votes cast, six employees voted to terminate the Agreement.

[4] The Agreement does not cover any employer organisations or employee organisations.

[5] In further correspondence between my chambers and Mr David Kidd, HR Manager – APAC Region, an undertaking was given that the employees currently employed, which as of 15 February 2019 numbers six, will continue to be paid the terms and conditions of the Agreement beyond termination of the Agreement.

[6] On 15 February 2019 in a telephone call with Mr Kidd, he confirmed that undertaking and I accept Mr Kidd’s statement to the Fair Work Commission. Further, Mr Kidd advised that the employees who voted to terminate the Agreement on 29 November 2018 were so informed of the Employer’s commitment.

[7] As I understand it, any new employees employed by the Employer will be remunerated on terms agreed between new employees and the Employer.

[8] In consideration of the material before me, 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.

[9] The termination will take effect today, 26 February 2019.

COMMISSIONER

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