Cragcorp Pty Ltd T/A Queensland Bridge and Civil

[2020] FWCA 4157

[2020] FWCA 4157

FAIR WORK COMMISSION

DECISION

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

Cragcorp Pty Ltd T/A Queensland Bridge and Civil
(AG2020/2226)

QUEENSLAND BRIDGE AND CIVIL ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 15 SEPTEMBER 2020

Application for termination of the Queensland Bridge and Civil Enterprise Agreement 2019 – application approved – agreement terminated.

[1] Crapcorp Pty Ltd T/A Queensland Bridge and Civil (the Employer) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Queensland Bridge and Civil Enterprise Agreement 2019 (the Agreement). The Agreement has not passed its nominal expiry date and covers two employees of the Employer.

[2] The application was supported by a Form F24A, Declaration in relation to termination of an enterprise agreement of Mr Joel Pallisier, Human Resources Manager of the Employer. The application was also supported by supplementary submissions to which I have had regard.

[3] Annexed to the application was a copy of the ballot and voting procedures provided to the two employees covered by the Agreement on 13 July 2020 together with witness statements of the two employees stating that they each voted to approve termination of the Agreement on 17 July 2020.

Background to approval of Agreement

[4] On 18 February 2020, the Fair Work Commission (the Commission) as presently constituted approved a copy of the Agreement submitted by the Employer in decision [2020] FWCA 859. The Employer subsequently identified that an incorrect copy of the Agreement was inadvertently submitted for approval to the Commission; that is, the Agreement approved by the Commission was not the same as the one voted upon and therefore made by the employees.

[5] On 12 March 2020, the Employer lodged an application pursuant to s.602 of the Act to correct an irregularity in relation to the Commission’s decision to approve the Agreement. I decided to dismiss that application for the reasons set out in decision [2020] FWC 2830 of 1 June 2020. While I found it troubling that the Agreement put to the Commission for approval was one that was never made by the Employer and its employees, I conclude that the approval of an agreement is the effect of making an instrument under the Act; an instrument that is therefore capable of termination under the Act.

[6] Throughout June and July 2020 the Employer informed its two employees covered by the Agreement of the error that had been made by it, and made it clear to the two employees that it wished for the following to occur:

(a) The Agreement be terminated by way of a vote of the two employees; and

(b) A new agreement be made by the two employees.

[7] On 26 June 2020, the Employer commenced bargaining for the Queensland Bridge and Civil Enterprise Agreement 2020 (the 2020 Agreement), intended to operate following the termination of the Agreement. On 27 July 2020, both employees of the Employer voted to approve the 2020 Agreement. The application to approve the 2020 Agreement was lodged with the Commission on 7 July 2020 and approved on 8 September 2020, to commence operation on 15 September 2020 per decision [2020] FWCA 4779.

[8] Pursuant to s.58 of the Act, the 2020 Agreement cannot apply to the two employees until such time as the Agreement the subject of this decision is terminated or reaches its nominal expiry date which is 30 October 2023.

Relevant legislation

[9] The conditions which must be met for an agreement to be terminated per an application under s.222 of the Act is as follows:

“Section 219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

219(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer – the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers – all of the employers and the employees covered by the agreement.

Termination has no effect unless approved by the FWC

219(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.

…..

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

220(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.

220(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.

220(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

Section 221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

221(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.

…..

Section 222 Application for approval

Application for approval

222(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

222(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

222(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 When the FWC must approve a termination of an enterprise agreement

223 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.”

Consideration

[10] The statements of Mr Pallisier and the two employees covered by the Agreement declare, amongst other things, that the two employees covered by the Agreement were given a reasonable opportunity to decide whether they wanted to approve the termination, were notified of the time and place of the vote and that of the two votes cast, two employees approved the termination of the Agreement.

[11] There are no employee organisations covered by the Agreement to which I can consider the views of pursuant to s.223(d) of the Act.

[12] In determining whether there are no other reasonable grounds for believing that the employees have not agreed to the termination, I have considered the statements of the two employees covered by the 2020 Agreement. It is clear that they have each understood the Employer’s error in the approval of the Agreement the subject of this decision. I consider that the two employees understand that the Employer wishes for the 2020 Agreement to apply and not the [2019] Agreement, and this is the course of action the employees agree should occur.

[13] I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

Conclusion

[14] The consideration at s.223 requires that the Commission must approve the termination of an agreement if all the requirements in ss.223(a) to (d) are met. For the reasons set out above, I have determined that I am satisfied that all these requirements have been met.

[15] I approve the termination of the Agreement effective from today, 15 September 2020.

COMMISSIONER

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