Citadel Group Services Australia Pty Ltd

[2022] FWCA 2250

[2022] FWCA 2250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Citadel Group Services Australia Pty Ltd

(AG2022/1983)

Citadel Group Services Australia Agreement 2019

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 JULY 2022

Application for termination of the Citadel Group Services Australia Enterprise Agreement 2019.

1. Citadel Group Services Australia Pty Ltd (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate the Citadel Group Services Australia Enterprise Agreement 2019[1] (the Agreement). The Agreement is expressed to cover the Applicant and employees falling within the scope of the classification structure in the Agreement. The Agreement’s nominal expiry date is 3 February 2024.

2. Sections 222 and 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:

   “222 Application for FWC 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 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 FWC considers it fair to extend that period—within such further period as 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.”

1. The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 4 February 2020[2]. It was approved to operate from 11 February 2020 with a nominal expiry date of 3 February 2024. It is an agreement made directly with employees and no industrial organisation is covered by it.

1. I note that the statutory declaration of Tamzin Yazdani, who is the Senior People and Culture Advisor for the Applicant, states that a ballot of employees conducted on 8 June 2022 resulted in a majority of employees who participated in the ballot, voting in support of termination of the Agreement. The application was filed in the Commission on 17 June 2022.

1. Based on the material contained in the employer’s declaration filed with the application, I am satisfied that employees were afforded a reasonable opportunity to approve the termination of the Agreement (s.223(a)) and that a valid majority of employees covered by the Agreement approved its termination (s.223(b)). I am also satisfied that there are no other grounds for believing that employees have not agreed to the termination of the Agreement (s. 223(c)) and that it is appropriate to terminate the Agreement (s. 223(d)). Having been satisfied as to each of the relevant requirements in s.223, I must terminate the Agreement.

1. The termination will operate from 7 July 2022. An order giving effect to this decision will be issued in conjunction with this decision.

DEPUTY PRESIDENT

[1] AE506964.

[2] [2020] FWC 572.

Printed by authority of the Commonwealth Government Printer

<AE506964  PR743493>