Burlington Berries Pty Ltd

[2023] FWCA 1956

[2023] FWCA 1956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Burlington Berries Pty Ltd

(AG2023/2055)

BURLINGTON BERRIES ENTERPRISE AGREEMENT 2019

Agricultural industry
COMMISSIONER LEE	MELBOURNE, 30 JUNE 2023

Application for termination of the Burlington Berries Enterprise Agreement 2019

1. This decision concerns an application made by Burlington Berries Pty Ltd (Applicant) to terminate the Burlington Berries Enterprise Agreement 2019[1] (Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees covered by the Agreement that agreed to the termination.

1. The Agreement is a single enterprise agreement. Its nominal expiry date was 18 June 2023. There are no employee organisations covered by the Agreement.

1. Section 222 of the Act provides:

“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.”

1. Section 223 of the Act provides:

“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.”

1. Section 224 of the Act provides:

“When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

1. Based on the materials filed with the application, I am satisfied that the Applicant has complied with the requirements of s.220(2) of the Act. It appears that employees were provided with detailed information by way of a fact sheet, explaining the effect on their terms and conditions of employment if the Agreement is terminated and that a number of meetings were held with employees. I am satisfied in the circumstances employees had a reasonable opportunity to decide whether they wanted to approve the termination of the agreement. I am also satisfied that the employer took all reasonable steps to notify employees of the time, place and method at which the vote would occur and the voting method that will be used. I am also satisfied that the application has been made consistently with the requirements of s.222 of the Act.

1. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1) of the Act. I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.

1. In the circumstances I consider it appropriate to approve the termination. The termination will operate from 30 June 2023.

1. An order[2] giving effect to this decision is separately issued.

COMMISSIONER

[1] AE504016.

[2] PR763746.

Printed by authority of the Commonwealth Government Printer

<AE504016  PR763743>