CLA Trading Pty Ltd T/A Europcar

[2023] FWCA 22

[2023] FWCA 22

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 15 Sch. 3—Termination of transitional instrument

CLA Trading Pty Ltd T/A Europcar

(AG2022/5613)

CLA TRADING PTY LTD AGREEMENT VSAS WSS 2007-2012

Scientific services
COMMISSIONER BISSETT	MELBOURNE, 5 JANUARY 2023

Application for termination of the CLA Trading Pty Ltd Agreement VSAs WSs 2007-2012

1. CLA Trading Pty Ltd T/A Europcar (the employer) has applied to terminate the CLA Trading Pty Ltd Agreement VSAs WSs 2007-2012 (the agreement) pursuant to Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act).

1. Item 15 provides that Subdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies so that a reference to an ‘enterprise agreement’ includes a reference to a ‘collective agreement-based transitional instrument’.

1. Section 223 of the Fair Work Act 2009 (FW Act) provides as follows:

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. I am satisfied on the basis of the material filed, including a statutory declaration of the Human Resources Director of the employer, that the employer has complied with the requirements of s.220(2) of the Act. Employees were advised of the time and place of voting on the termination of the agreement and the method by which the vote would be taken. Further, I am satisfied that employees were given a reasonable opportunity, through the provision of relevant written material and presentations on the effect of termination of the agreement, to decide if they wanted to approve the proposed termination.

1. I am satisfied that the termination was agreed to in accordance with s.221(1) of the FW Act in that the majority of employees who cast a valid vote voted in favour of the termination. Thirteen employees are covered by the agreement. The nine employees who cast a valid vote all voted to terminate the agreement. I am satisfied that there are no grounds for believing the employees have not agreed to the termination.

1. There are no employee organisations covered by the Agreement.

1. The application has been made within the statutory time period required under s.222(2) of the FW Act.

1. For these reasons I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met and therefore order that the agreement be terminated.

1. Following further correspondence instigated by me, the employer has indicated that it seeks that the agreement be terminated such that the General Retail Industry Award 2022 (which will apply on termination of the agreement) takes effect from 12.00am on 13 February 2023. This date aligns with the employer’s pay cycle and will allow for necessary adjustments to systems and rosters to properly align with conditions in the General Retail Industry Award 2022. Having reviewed the information provided to employees prior to them being asked to vote on termination of the agreement, I am satisfied that the agreement should be terminated with effect from the date proposed by the employer.

1. The termination of the agreement is therefore approved. The termination takes effect at 11.59 pm on 12 February 2023.

COMMISSIONER

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