Civic Concrete Group Pty Ltd

[2013] FWC 633

[2013] FWC 633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Civic Concrete Group Pty Ltd
(AG2012/13764)

COMMISSIONER MACDONALD SYDNEY, 30 JANUARY 2013

Agreement to terminate individual agreement-based transitional instrument.

[1] This Decision concerns an application by Civic Concrete Group Pty Ltd (the Company) to terminate the Civic Concrete Group Pty Ltd/CFMEU Collective Agreement 2011-2014 (the Agreement), pursuant to section 222 of the Fair Work Act 2009 (the FW Act).

[2] The Agreement is identified as AG2011/1307, made on 20 June 2011, with a nominal expiry date of 30 June 2014.

[3] The material before the Tribunal in support of the application to terminate the Agreement consisted of the Form 24 Application and Statutory Declaration of Mr William Nakos, Director of the Company (which included an annexure going to the ballot process of the employees).

Relevant Legislation

[4] The Company filed the application pursuant to section 222 of the FW Act. Section 222 is in the following terms:

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

[5] Section 222(1) requires evidence that the application to terminate the Agreement is by consent, in order to then allow a person to make an application to terminate an enterprise agreement. The filed material suggested that the employees had voted on the Company’s proposal to terminate the Agreement and the employees had agreed to terminate the Agreement. There was no supporting material from the employee organisation or from any employee/employees confirming that the application to terminate the Agreement was by consent. My office contacted the employee organisation involved: Construction, Forestry, Mining and Energy Union NSW Branch (the CFMEU) seeking further particulars. Subsequently, my office was provided with Statutory Declarations from Nicola De Frenza, concretor/employee of the Company and Warren Kelly, union organiser of the CFMEU. Both Statutory Declarations confirmed that the employees had voted and agreed upon the termination of the Agreement. Accordingly, I am satisfied that the application before myself is a consent application.

[6] Section 222(2) requires supporting declarations and one declaration was provided by William Nakos, Director of the Company.

[7] Section 222(3) has been satisfied in that the application to terminate the Agreement was made on 27 November 2012 and that was within 14 days after the date 21 November 2012 that the employees voted to approve the termination of the Agreement.

[8] Section 223 sets out that Fair Work Australia must approve this application to terminate an enterprise agreement if four stated conditions are met. Section 223 is in the following terms:

“223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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.”

[9] Section 223(a) is satisfied if the Company has complied with section 220(2), which provision goes to the ballot approving process. The Statutory Declaration of Mr Nakos includes a copy of the Employee Notice advising of the time, place and the method of voting to be used, in respect of the process for the termination of the Agreement.

[10] Section 223(b) is satisfied when the termination of an enterprise agreement is carried out in accordance with section 221(1) or (2). The former subsection applies in this instance as the enterprise agreement is a single enterprise agreement. Section 221(1) is satisfied in this instance in that the Statutory Declarations showed that the employees approved of the termination of the Agreement.

[11] Section 223(c) is satisfied in that there is no evidence that there are reasonable grounds for believing that the employees have not agreed to the termination.

[12] Section 223(d) is satisfied in that the employee organisation have provided information confirming their consent to the company’s application to terminate the Agreement.

Conclusion

[13] I am satisfied, given the foregoing consideration of the relevant legislation and the relevant information provided, that I must approve the termination of the Agreement pursuant to section 223 of the Act.

[14] The termination of the Agreement will take effect from midnight of 5 February 2013, pursuant to section 224. This date has been selected given that the date for the operation of the new enterprise agreement (AG2012/13765), as approved by myself will be 6 February 2013.

COMMISSIONER

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