Compass Group (Australia) Pty Ltd t/as ESS Support Services Worldwide

[2015] FWCA 4095

[2015] FWCA 4095

FAIR WORK COMMISSION

DECISION

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

Compass Group (Australia) Pty Ltd t/as ESS Support Services Worldwide
(AG2015/1324)

COMPASS GROUP (ESS CANNINGTON) ENTERPRISE AGREEMENT 2011

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 19 JUNE 2015

Application for termination of the Compass Group (ESS Cannington) Enterprise Agreement 2011.

[1] This is an application, filed by Compass Group (Australia) Pty Ltd t/as ESS Support Services Worldwide pursuant to s 222 of the Fair Work Act 2009 (the ‘Act’) to terminate the Compass Group (ESS Cannington) Enterprise Agreement 2011 [AE896675] (the ‘old Agreement’). I note that this application was filed on the same day as an application made by the applicant to approve a new enterprise agreement, the Compass Group (ESS Cannington) Enterprise Agreement 2015 (the ‘new Agreement’) and it is proposed that the employment of the 72 employees currently covered by the old Agreement are to be covered by the new Agreement.

[2] The relevant provisions of the Act governing this application are set out at ss 220-224 as follows:

‘220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement
(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement
(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s 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 the 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 the FWC considers it fair to extend that period—within such further period as the 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.


224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.’

[3] In a Declaration in support of the termination of the old Agreement (Form F24A), Ms C Holmes, National Workplace Manager, explained that the employees were informed of the Company’s intention by way of a letter dated 16 February 2015. The Australian Workers’ Union (the ‘Union’), which is covered by the old Agreement, was involved in this process as well as eight nominated Employee Bargaining Representatives (EBR). The employees were notified in writing (from 9 May 2015), by a notice placed on their noticeboard (from 9 May 2015) and in a communication placed on the applicant’s intranet (from 11 May 2015) of a vote for approval of the termination to be conducted between 19 and 21 May 2015. I am satisfied that the applicant gave the employees covered by the Agreement a reasonable opportunity to consider whether they supported the termination of the old Agreement (s 220(2)). In a secret online ballot, 37 of the 70 employees who cast a valid vote agreed to terminate the Agreement, satisfying s 221(1) of the Act. For the sake of completeness, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination of the Agreement (s 223(c)).

[4] In a hearing of the application conducted on 16 June 2015, Ms C Holmes appeared for the applicant and Mr B Harding appeared for the Union. Ms Holmes said that the application to terminate the old Agreement and the application for approval of the new Agreement arose from the applicant’s decision to implement a change in rosters, so as to secure a new commercial contract with Cannington Mines in Queensland. Mr Harding indicated that the Union supported the termination of the old Agreement and the approval of the new Agreement. Having taken into account the views of the employees as expressed in the vote, the view of the applicant and the view of the Union, I am satisfied that it is appropriate to approve the termination of the Agreement.

[5] Having considered the parties’ submissions and upon reviewing the application and the statutory declaration of Ms Holmes, I am satisfied that all of the requirements of the Act, in particular, ss 220, 221, 222 and 223, have been met. Accordingly, the Compass Group (ESS Cannington) Enterprise Agreement 2011 will be terminated. Pursuant to s 224 of the Act, and by consent, the termination is to take effect on and from 6 July 2015.

DEPUTY PRESIDENT

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