Clarence City Council

[2013] FWCA 7019

[2013] FWCA 7019

The attached document replaces the document previously issued with the above code on 16 September 2013.

The footnote has been amended from “AE882649” to the correct reference number “AE882694”

Erin Bulluss

Associate to Commissioner Lee

Dated 30 September 2013

[2013] FWCA 7019

FAIR WORK COMMISSION

DECISION

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

Clarence City Council
(AG2013/2131)

ROSNY CHILD CARE CENTRE ENTERPRISE AGREEMENT #4/2010

Tasmania
COMMISSIONER LEE	MELBOURNE, 16 SEPTEMBER 2013

Application for termination of the Rosny Child Care Centre Certified Agreement 4/2010.

[1] On 29 July 2013, the Clarence City Council (the Applicant) made application pursuant to section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the Rosny Child Care Centre Certified Agreement #4/2010 1(the Agreement). The application was accompanied by a statutory declaration of Mr Andrew William Paul, General Manager of Clarence City Council dated 26 July 2013.

[2] On 15 August 2013, I wrote to the Applicant seeking further particulars as to the vote of employees. In response, I received a further statutory declaration from Mr Andrew William Paul dated 16 August 2013.

[3] The statutory declarations provided to me outline the process undertaken by the Applicant to inform employees of the time and place for the vote. The statutory declaration provides that employees were given seven days between advice of the ballot and the actual ballot taking place to ensure employees a reasonable opportunity to decide whether they want to approve the proposed termination. On the materials provided to me, I am satisfied that the requirements of section 220(2) of the Act has been met.

[4] The statutory declarations provided to me evidence that a majority of the employees who cast a valid vote approved the termination of the agreement. On the materials provided to me, I am satisfied that pursuant to section 221(1) of the Act, the employees were asked by the employer to approve a termination and that the termination of the agreement was agreed to.

[5] The Application was made by Clarence City Council, which is covered by the Agreement (s.222(1)). The application was accompanied by statutory declarations are required (s.222(3)).

[6] The statutory declaration dated 26 July 2013 provided that the termination was agreed to on 25 July 2013. I am satisfied that the application was made within 14 days after the termination was agreed to (s.222(3)).

[7] Section 223 of the Act sets out when the Fair Work Commission must approve a termination;

“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.”

[8] As detailed above, I am satisfied that the employer complied with subsection 220(2) of the Act (s.223(a). I have also detailed that I am satisfied that the termination was agreed to in accordance with subsection 221(1) of the Act (s.223(b)).

[9] There are no other reasonable grounds for believing that the employees have not agreed to the termination (s.223(c)).

[10] The Agreement does not cover an employee organisation (s.223(d)).

[11] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 of the ActI must approve the termination of the Agreement.

[12] The termination of the Agreement will take effect from midnight of 22 September 2013 pursuant to section 224. This date has been selected given that the date for the operation of the new enterprise agreement (the Rosny Child Care Centre Enterprise Agreement #5/2013 - matter AG2013/2132), as approved by myself will be 23 September 2013.

COMMISSIONER

 1   AE882694

Printed by authority of the Commonwealth Government Printer

<Price code A, AE882694  PR541841>