Cummins South Pacific Pty Ltd T/A Cummins South Pacific
[2024] FWCA 4474
•20 DECEMBER 2024
| [2024] FWCA 4474 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Cummins South Pacific Pty Ltd T/A Cummins South Pacific
(AG2024/4504)
CUMMINS SUPPORT CENTRE – SERVICE ENTERPRISE AGREEMENT 2018
| Manufacturing and associated industries | |
| COMMISSIONER CONNOLLY | MELBOURNE, 20 DECEMBER 2024 |
Application for termination of the Cummins Support Centre – Service Enterprise Agreement 2018
On 13 November 2024, Cummins South Pacific Pty Ltd (the Applicant) made an application for termination of the Cummins Support Centre – Service Enterprise Agreement 2018 (the Agreement), pursuant to s.222 of the Fair Work Act 2009 (the Act).
Relevant Legislation
Sections 222 and 223 of the Act are relevant to this application and are as follows:
“222 Application for FWA approval of 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 FWA 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 FWA considers it fair to extend that period—within such further period as FWA allows.
223 When FWA 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, FWA must approve the termination if:
(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) FWA 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.”
Relevant Background
The Applicant’s application was accompanied by a F24A declaration by Chloe Lane, Senior Talent Management Specialist and supporting documentation. The declaration set out the following:
In October 2023, employees of the applicant made request to explore termination of the Agreement.
On 10 December 2023, the Applicant held an informal vote of employees to gauge support for terminating the Agreement that was supported by the employees.
On 7 March 2024, the Applicant made a presentation to employees setting out the background to the Agreement, negotiations and its proposals if the Agreement were to be terminated.
On 29 May 2024, the Applicant provided employees with a formal letter of offer, inclusive of its proposals.
On 11 June 2024, the Applicant held a meeting and made a presentation to employees outlining the implications of a proposed termination of the Agreement and its proposals, including preserving entitlements, in the event termination was approved.
On 22 July 2024, the Applicant held another informal vote of employees to gauge support for terminating the Agreement that was supported by a majority of employees.
On 21 October 2024, the Applicant sent an email to all employees covered by the Agreement confirming an online confidential vote would be held from 23rd - 30th October 2024 asking employees to support or oppose the Agreement’s termination.
On 30 October 2024, the outcome of the ballot was declared with 15 of 14 employees covered by the Agreement voting to support its termination.
The application was allocated to my Chambers for consideration on 18 November 2024. On reviewing the material provided on 25 November 2024 my Chambers wrote to the Applicant and the AMWU, as an employee organisation covered by the Agreement. My correspondence provided the AMWU with an opportunity to express its views on the application no later than Friday 29 November 2024.
The AMWU did not express any concerns with the application being granted. Accordingly, I have determined the application on the material provided to the Commission.
Consideration – s.222 of the Act
Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?
By virtue of clause 4 of the Agreement, being the coverage and parties bound clause, I am satisfied the Applicant is covered by the Agreement and has standing to make the application.
Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?
The Application is accompanied by a Form 24A – declaration in support of termination of an enterprise agreement. Therefore, I am satisfied that the requirements of s.222(2) of the Act have been met
Has the Application been made within the required timeframe per s.222(3)(a)?
Section 222(3) of the Act sets out the timeframe within which an application must be made, being 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.
It is declared in the Form F24A that the termination was agreed to on 30 October 2024.
The Application to the Commission for termination of the agreement was made the same day and I am satisfied the requirements of s.222(3) have been met.
Consideration – s.223 of the Act
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.
Section 223(a) requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.
Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?
It is declared in the Form F24A that on 21 October 2024 all staff were informed a secret online ballot of all employees covered by the Agreement would commence on 23 October 2024, and close on 30 October 2024.
Having considered the materials before me, I am satisfied that before requesting employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.
Did the Applicant give the employees as reasonable opportunity to decide whether they want to approve to the proposed termination as required by s.220(2)(b) of the Act?
The Application impacts 15 employees of Applicant. It is declared in the Form F24A that all employees were informed of their option to consider approving termination of the Agreement at staff meetings on 7 March and 11 June 2024. Further, that all eligible employees were provided with informal opportunities on 10 December 2023, and 22 July 2024, to express their support or otherwise for termination of the Agreement.
I have considered the material before me, and I am satisfied that in the circumstances the Applicant has given employees a reasonable opportunity to decide whether they want to approve the proposed termination.
Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?
Section 223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.
It is declared in the Form F24A that there were 15 employees covered by the Agreement, 14 of whom cast a valid vote and 14 voted to approve the termination of the Agreement.
Having considered the material before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.
Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
On the material before me as set out above, I am satisfied that there are no other reasonable grounds for believing that employees have not agreed to the termination.
Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)
The AMWU is a bargaining representative covered by the Agreement. On 25th November my Chambers wrote to the AMWU providing them an opportunity to express any views or concerns with the application to my Chambers on 29th November 2024. The AMWU did not express any views or concerns.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of ss.222 and 223 of the Act have been met.
No submissions have been filed in opposition.
I am satisfied that it is appropriate to terminate the Agreement.
Section 224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.
In accordance with s.224, the termination will come into effect from 17 December 2024.
COMMISSIONER
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