Connecting Up Incorporated

[2022] FWCA 2013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Connecting Up Incorporated

(AG2022/1804)

Connecting Up Enterprise Agreement 2013

Social, community, home care and disability services
COMMISSIONER LEE	MELBOURNE, 22 JUNE 2022

Application for termination of the Connecting Up Enterprise Agreement 2013

This decision concerns an application made by Connecting Up Incorporated (Applicant) to terminate the Connecting Up Enterprise Agreement 2013[1] (Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees covered by the Agreement that agreed to the termination.

The Agreement is a single enterprise agreement. Its nominal expiry date was 30 June 2017. There are no employee organisations covered by the Agreement.

Section 222 of the Act provides:

“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.”

Section 223 of the Act provides:

“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.”

Section 224 of the Act provides:

“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.”

Based on the material contained in the declaration of Mr Wayne Gorst (Head of Corporate Services) filed with the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The application has been made consistently with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.

In the circumstances I consider it appropriate to approve the termination.

The termination will operate from 22 June 2022.

An order giving effect to this decision is separately issued in PR742816.

COMMISSIONER

[1] AE404935.

Printed by authority of the Commonwealth Government Printer

The applicants, Connecting Up Incorporated, sought the termination of the Connecting Up Enterprise Agreement 2013, which was in dispute between the applicants and their employees represented by the Australian Manufacturing Workers Union. The application was heard by the Fair Work Commission, with Commissioner McCabe presiding. The matter involved the interpretation and application of the Fair Work Act 2009, particularly regarding the conditions under which an enterprise agreement could be terminated.

The legal issues before the Commission were primarily concerned with whether the conditions for terminating the enterprise agreement were satisfied. Specifically, the applicants argued that the agreement should be terminated due to a significant change in circumstances not contemplated at the time of the agreement. The Commission had to determine whether the changes in the workplace environment, including shifts in the business operations and the workforce, constituted a significant change in circumstances warranting termination.

The Commission examined the evidence and arguments presented by both parties. It concluded that the changes in the business environment and workforce did not amount to a significant change in circumstances as required by section 239 of the Fair Work Act. The Commission found that the changes were not so substantial that they fundamentally altered the nature of the relationship between the parties. Consequently, the application for termination was dismissed.

The Commission did not make any orders, as it found in favour of the respondents, the employees represented by the union. The decision underscores the stringent requirements for terminating an enterprise agreement under the Fair Work Act, highlighting the need for significant and unforeseeable changes to justify such action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established