Brisbane Pump Action Pty Ltd ATF the Burnett Family Trust

[2017] FWCA 6109

[2017] FWCA 6109

FAIR WORK COMMISSION

DECISION

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

Brisbane Pump Action Pty Ltd ATF the Burnett Family Trust
(AG2017/5427)

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 22 NOVEMBER 2017

Application for termination of the Brisbane Pump Action Pty Ltd Collective Agreement 2009-2012.

[1] On 10 November 2017, Brisbane Pump Action Pty Ltd ATF the Burnett Family Trust (the Employer) applied pursuant to Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Brisbane Pump Action Pty Ltd Collective Agreement 2009-2012 (Agreement).

Legislative provisions

[2] Schedule 3, Item 15 of the Transitional Act provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Chapter 2, Part 2-4, Division 7, Subdivision C of the Act relevantly provides as follows:

‘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 application was supported by a statutory declaration from the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[5] While it appears that not all employees voted at the time the vote was conducted, that is, only 17 employees voted out of 25 eligible employees, there were 13 employees who voted in favour of termination of the Agreement. This represented a majority of all eligible employees.

[6] 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.

[7] The termination will take effect from today, 22 November 2017.

COMMISSIONER

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