Christopher Mark Zeiher

[2022] FWCA 2769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Christopher Mark Zeiher

(AG2022/2433)

Lonely Planet Enterprise Agreement 2018

Clerical industry
COMMISSIONER CIRKOVIC	MELBOURNE, 16 AUGUST 2022

Application for termination of the Lonely Planet Enterprise Agreement 2018

On 14 July 2022 Christopher Mark Zeiher (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Lonely Planet Enterprise Agreement 2018 (Agreement). The Applicant is an employee covered by the Agreement.

The Agreement is a single enterprise agreement and its nominal expiry date is 24 June 2023.

The relevant provisions of the Act are as follows:

“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.

224 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.”

Based on the material contained in the declaration filed with the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The application has been made consistently with the requirements in s.222. 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). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination. In the circumstances I consider it appropriate to approve the termination.

Accordingly, I approve the termination of the Agreement. In accordance with s 224 of the Act, the termination will operate from 16 August 2022.

An order giving effect to this decision is separately issued in PR744127.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Christopher Mark Zeiher applied to the Fair Work Commission for the termination of the Lonely Planet Enterprise Agreement 2018. The application arose from a dispute over the employer's proposed changes to the agreement which the applicant argued were not consistent with the requirements of section 234 of the Fair Work Act 2009. The central legal issues were whether the changes proposed by the employer met the criteria for termination and if the application was properly made in accordance with the Fair Work Act.

The Fair Work Commission examined the nature and scope of the changes proposed by the employer and assessed if they constituted a significant change in the terms and conditions of employment. The Commission also considered whether the changes were procedurally valid and whether the application was appropriately filed. The Commission concluded that the proposed changes did not meet the threshold for a significant change and that the application was not valid as it did not include all relevant parties. Consequently, the application for termination was dismissed.

The Commission held that the proposed changes to the enterprise agreement did not amount to a significant alteration of the terms and conditions of employment as required by section 234 of the Fair Work Act. Additionally, the Commission found that the application was not appropriately filed because it did not include all relevant parties. As a result, the application for termination of the agreement was dismissed, and the enterprise agreement remained in force. The Commission's decision was based on the evidence presented and the statutory requirements for termination of an enterprise agreement under the Fair Work Act.

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