Comlink Australia Limited (formerly Comlink Limited) T/A Comlink Australia

[2022] FWCA 1552

[2022] FWCA 1552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Comlink Australia Limited (formerly Comlink Limited) T/A Comlink Australia

(AG2022/912)

the ComLink Limited Enterprise Agreement 2019

Health and welfare services industry
COMMISSIONER HUNT	BRISBANE, 11 MAY 2022

Application for termination of the ComLink Limited Enterprise Agreement 2019

1. On 28 March 2022, Comlink Australia Limited (formerly Comlink Limited) T/A Comlink Australia (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the ComLink Limited Enterprise Agreement 2019 (the Agreement). The Agreement has passed its nominal expiry date of 31 December 2021.

1. The Employer stated in the ‘Form F24 – Application for termination of an enterprise agreement by agreement’ (F24) that the termination was agreed to on 24 March 2022. I am satisfied that this application has been made within 14 days after the termination was agreed to, as required by s.222(3)(a) of the Act.

1. The Agreement covers the Employer. I am therefore satisfied that the Employer is an employer covered by the Agreement for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act and can therefore make this application.

1. Section 223 of the Act sets out the conditions which, if established, require the Commission to terminate the Agreement pursuant to s.222 of the Act. Section 223 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. The application was supported by a Form F24A statutory declaration made by Ms Catherine Hicks, People & Culture Manager of the Employer, which declared, amongst other things, that the 188 employees covered by the Agreement were notified on 18 March 2022 that a vote would commence on 21 March 2022, and that the vote would be taken by electronic ballot. The vote process concluded on 24 March 2022. Managers reminded employees to vote in face-to-face meetings with staff, and by text message. Reminder emails were also sent to employees during the voting period. Of the 119 votes cast, 99 employees approved the termination of the Agreement. The Employer’s primary activity is described in the F24A as “[i]n home and community care within the Aged Care Sector”.

1. On 26 November 2021, the Employer first raised with employees the prospect of terminating the Agreement, having consulted with employees regarding the Agreement’s pending nominal expiry date.  Email consultation took place in December 2021 and January 2022, followed by in-person site-visit meetings by Ms Hicks in February 2022. Further detailed information regarding award classifications and pay tables was provided in early March 2022 to employees following the sites visits. Copies of emails sent to employees have been provided together with the F24 application.

1. If the Agreement is terminated, the employees currently covered by the Agreement will instead be variously covered by the Passenger Vehicle Transportation Award 2020 (the PVT Award), the Clerks—Private Sector Award 2020 (the CPS Award), or the   Social, Community, Home Care and Disability Services Industry Award 2010  (the SCHCADS Award).

1. In the decision to approve the Agreement in 2019, Deputy President Masson noted at [5] that the Agreement covers the Australian Workers’ Union (AWU), the Transport Workers’ Union (TWU) and the Australian Nursing and Midwifery Federation (ANMF).[1] Therefore, s.223(d) is a relevant factor.

1. On 31 March 2022, I sought the views of the AWU, the TWU and the ANMF as to the termination of the Agreement for the purpose of s.223(d) of the Act.

1. On 8 April 2022, the TWU advised that it opposed termination of the Agreement, contending that it was appropriate for a new enterprise agreement to be negotiated. 

1. On 11 April 2022, the AWU advised that it opposed termination and supported the TWU’s position.

1. The ANMF did not provide any views in this matter.

1. On 29 April 2022, I convened a telephone Conference with the parties which was attended by the Employer, the TWU and the AWU.  The Employer indicated that it did not presently wish to negotiate a replacement agreement.  I afforded the parties a few days to attempt to reach agreement on matters between them.  On 3 May 2022, the Employer advised that in light of the objection to the application made by the TWU and the AWU, it wished to proceed to the application being determined by the Commission by arbitration.

1. On 4 May 2022, the TWU and the AWU advised that objection to the application was withdrawn and each of the unions would pursue alternative strategies to advance bargaining for their members employed by the Employer.  Despite the objection of the unions being withdrawn, I still consider it is necessary, having regard to s.223(d) of the Act to weigh up the ballot result against the wishes of the unions to attempt to negotiate a new agreement prior to this Agreement being approved for termination.

1. In consideration of the material before me, including the statutory declaration and the supporting material, I am satisfied that the requirements of s.223 of the Act have been met, including that it is appropriate to approve the termination. In reaching this satisfaction, I have had regard to the fact it was available to the Employer to make a s.225 application, noting that the Agreement has passed its nominal expiry date.  Instead, the Employer took the matter to a vote of employees covered by the Agreement and of those employees who voted, an overwhelming majority of employees supported termination of the Agreement. In this particular set of circumstances, the strong ballot result carries substantial weight when determining the issue as to whether it is appropriate to terminate the Agreement.   

1. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The Employer did not nominate a specific date on which it sought for the termination to take effect.

1. Pursuant to s.224 of the Act, the termination operates from the date of this decision, being 11 May 2022.

COMMISSIONER

[1] [2019] FWCA 4349.

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