DECISION

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

Carl Zeiss Vision Australia Holdings Limited
(AG2017/3688)

CARL ZEISS VISION AUSTRALIA EMPLOYEES WORKPLACE AGREEMENT

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 9 NOVEMBER 2017

Application for termination of the Carl Zeiss Vision Australia Employees Workplace Agreement – termination agreed by majority vote – approval opposed by union covered by Agreement – information provided to employees not misleading – reasonable opportunity to decide – proposed change of employer relevant consideration - history of collective bargaining between parties- statutory scheme for collective bargaining – termination approved

[1] On 21 August 2017 an employer, Carl Zeiss Vision Australia Holdings Ltd applied to the Fair Work Commission (the Commission) for termination of the Carl Zeiss Vision Australia Employees Workplace Agreement (the Agreement) under section 222 of the Fair Work Act 2009 (the FW Act).

[2] The Agreement is a single enterprise agreement. It covers the work of manufacturing and clerical employees engaged in ophthalmic lens manufacturing and processing. Although the employer operates in three States (South Australia, New South Wales and Queensland) this Agreement only applies in South Australia.

[3] The Agreement was made on 27 May 2013 and approved by the Commission on 6 June 2013. 1 It operated from 14 June 2013, and was preceded by a prior collective agreement made in 2010. It passed its nominal expiry date on 2 April 2017 and, since then, has continued to operate by force of law.

[4] An industrial organisation, United Voice, was a bargaining representative for employees under the Agreement when it was made in 2013, and is covered by it.

[5] The applicant employer is entitled to apply for the termination of the Agreement under section 222 of the FW Act. That sections deals with circumstances where termination of an Agreement is sought on the basis that termination has been agreed to. The applicant says that a majority of employees have agreed to terminate the Agreement in accordance with the provisions of the Act.

[6] On 24 August 2017 I issued Directions requiring the applicant employer to provide all employees covered by the Agreement notice of the application and the proposed hearing date. 2 The employer complied with this direction.3

[7] On 24 August 2017 United Voice notified the Commission that it opposed the application and wished to be heard on it.

[8] I conducted a hearing of the matter on 28 September 2017. The employer and United Voice appeared and made submissions. In the interests of the efficient conduct of proceedings I granted permission under section 596 of the FW Act for the employer to be represented at the hearing by a lawyer, Ms Hii. The employer was also represented by its Human Resources, Safety and Claims Coordinator, Ms Kylie Bruce. United Voice was represented by an Industrial Officer, Mr Zammit. No other employee interests appeared.

[9] The employer’s application was accompanied by a Statutory Declaration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carl Zeiss Vision Australia Holdings Limited

Details

AGLC: Carl Zeiss Vision Australia Holdings Limited [2017] FWCA 5825
Case: [2017] FWCA 5825
Decision Date: 9 NOVEMBER 2017

CaseChat Overview and Summary

The case before the Fair Work Commission involved Carl Zeiss Vision Australia Holdings Limited, which sought to terminate the Carl Zeiss Vision Australia Employees Workplace Agreement. The union opposed the approval of the termination, which had been agreed to by a majority of employees. The central issue before the Commission was whether the termination should be approved, given the union's opposition, despite the employees' majority agreement. The Commission had to determine if the information provided to employees was misleading, whether employees had a reasonable opportunity to decide, and if the proposed change of employer was a relevant consideration. Additionally, the Commission examined the history of collective bargaining between the parties and the statutory scheme for collective bargaining.

The Commission found that the information provided to employees was not misleading and that they had a reasonable opportunity to decide on the proposed changes. The history of collective bargaining and the statutory scheme were also considered, reinforcing the legitimacy of the employees' decision. The proposed change of employer was deemed a relevant consideration in the employees' decision-making process. The Commission concluded that the termination should be approved, as the employees had reached their decision through a proper process and were adequately informed.

The Fair Work Commission approved the termination of the Carl Zeiss Vision Australia Employees Workplace Agreement, despite the union's opposition. The decision was based on the employees' majority vote, the adequacy of the information provided, and the reasonable opportunity afforded to employees to decide on the proposed changes. The Commission's approval recognised the statutory scheme for collective bargaining and the history of negotiations between the parties. The final orders included the termination of the existing workplace agreement and the implementation of the new agreement as agreed upon by the majority of employees.

Orders