Dairy Technical Services Pty Ltd

[2016] FWCA 6737

[2016] FWCA 6737

FAIR WORK COMMISSION

DECISION

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

Dairy Technical Services Pty Ltd
(AG2016/4916)

DTS FOOD LABORATORIES COLLECTIVE AGREEMENT 2012 - 2015
[AE898980]

Dairy and food testing industry
VICE PRESIDENT WATSON	MELBOURNE, 19 SEPTEMBER 2016

Application for termination of the DTS FOOD LABORATORIES COLLECTIVE AGREEMENT 2012 - 2015.

Introduction

[1] This decision concerns an application made by Dairy Technical Services Pty Ltd (DTS) on 4 August 2016 to terminate the DTS FOOD LABORATORIES COLLECTIVE AGREEMENT 2012 - 2015 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act).

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) advised by way of email on 12 September 2016 that it did not intend to make any submissions in relation to this application.

The relevant legislation

[3] Section 223 of the Act states when the Fair Work Commission must approve a termination of an enterprise agreement:

“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.”

Notification Requirements

[4] DTS’s application was accompanied by a statutory declaration made by Ms N. Reardon, Human Resources Manager of DTS, dated 4 August 2016, which outlines the process undertaken by DTS in relation to the employee vote. The circumstances are that a majority of employees have sought an opportunity to move from enterprise agreement terms and conditions to conditions under individual employment contracts.

[5] Ms Reardon declared that one-on-one meetings were held between relevant employees, respective team leaders and Human Resources, in order to present information to employees regarding the employees’ decision whether to continue receiving the same terms and conditions as under the Agreement, or the revised terms and conditions contained in the revised employment contract. These meetings were held on either Monday, 25 July 2016 or Tuesday, 26 July 2016. Three relevant employees who were on leave at the time were contacted by Ms L. Skipworth via telephone and provided with this same information. The relevant employees were informed of the respective implications, benefits and consequences of remaining employed under the Agreement and the proposed employment contracts. The relevant employees were advised on the overall process associated with terminating the Agreement, in addition to the time, date location and method of voting on the proposed termination. The relevant employees were provided with access to copies of the Agreement and were advised to review and consider the proposal prior to casting a vote.

[6] The relevant employees were provided with either three or four days (subject to which day their one-on-one meeting was held) to review and consider the available materials and information before being asked to vote on the termination of the current Agreement. I am therefore satisfied that the requirements of s.220(2) have been met as required by s.223(a).

Employee Agreement

[7] I am satisfied that the termination was agreed to in accordance with s.221(1) of the Act as required by s.223(b). The statutory declaration provides evidence that nine of the twenty employees covered by the Agreement cast a valid vote approving the termination of the Agreement. Thirteen of these twenty employees cast a valid vote.

[8] There are no other reasonable grounds for believing that the employees have not agreed to the termination (s.223(c)) and the AMWU has advised the Commission that it does not oppose the application to terminate the Agreement (s.223(d)).

Is termination appropriate?

[9] I have taken into account the evidence in this matter and note that the AMWU, the only organisation covered by the Agreement made no submissions on the matter. The employer and a majority of employees who voted on termination wish to terminate the Agreement. The Agreement has passed its nominal expiry date. I consider that it is appropriate to give effect to those views and terminate the Agreement.

Conclusion

[10] I am satisfied that the requirements ofs.223 of the Act have been met and therefore, pursuant to the terms of that section, the DTS FOOD LABORATORIES COLLECTIVE AGREEMENT 2012 - 2015 must be terminated. An order to this effect is issued in conjunction with this decision (PR585575).

VICE PRESIDENT

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