Darwin Galvanizing Pty Ltd
[2021] FWCA 6887
•29 NOVEMBER 2021
| [2021] FWCA 6887 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Darwin Galvanizing Pty Ltd
(AG2021/8084)
Darwin Galvanizing Pty Ltd Enterprise Agreement 2012-2016
| Northern Territory | |
| COMMISSIONER MATHESON | SYDNEY, 29 NOVEMBER 2021 |
Application for termination of the Darwin Galvanizing Pty Ltd Enterprise Agreement 2012-2016
On 27 October 2021, Darwin Galvanizing Pty Ltd (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Darwin Galvanizing Pty Ltd Enterprise Agreement 2012-2016 (Agreement).
The Agreement is a single enterprise agreement. It was approved by Deputy President Sams on 19 September 2012.[1] The nominal expiry date of the Agreement is 30 July 2016.
There are six employees covered by the Agreement and the underpinning Award is the Manufacturing and Associated Industries and Occupations Award 2010 (Award).
Legislation
The relevant provisions of the Act are 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.
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.”
Consideration – s.222 of the Act
Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?
The employer covered by the Agreement is Darwin Galvanizing Pty Ltd (ABN 57 062 483 416). This is the same as the employer named in the Form F24 – Application for termination of an enterprise agreement by agreement (Form F24).
Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant 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 F24A – declaration in support of termination of an enterprise agreement (Form F24A). I am satisfied that the Application is accompanied by the material required by the Fair Work Commission Rules 2013 and 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)?
S.222(3) of the Act sets out the timeframe within which an application must be made, being within 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.
Ms Erin Englezakis declared in the Form F24A that the termination was agreed on 29 September 2021.
The Commission’s records show the Application was filed on 27 October 2021 which means the application was not made within 14 days after the termination was agreed to.
The Applicant advised that this arose from a combination of factors including difficulties in collating the information for the application and a misunderstanding between the Applicant and its representative regarding who would be filing the Application and accompanying Form F24A. The Applicant requested an extension of time for the making of the Application until 28 October 2021, the date on which the Application was filed. In all the circumstances I consider it would be fair to extend the period for the making of the Application until 28 October 2021 and grant the extension.
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.
S.220(2)
S.223(a) of the Act 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?
Erin Englezakis declared in the Form F24A that on 10 September 2021 employees were provided with a letter and email to notify the employees of the time, place and voting method that would be used and that on 13 September 2021 a ballot box was placed in the employee meeting room and employees were provided with ballot papers.
Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the 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 a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?
Erin Englezakis declared in the Form F24A that the following steps were taken to ensure that the employees covered by the Agreement were given a reasonable opportunity to decide on whether they want to approve the proposed termination:
In May and August 2021, employees were given information and a full comparison of the Agreement and Award. A copy of a comparison document was filed with the Application and Form F24A.
In August 2021 employees were asked to indicate whether they wanted to nominate a representative for the purposes of discussions. The employees did not nominate a representative.
On 1 September 2021 a consultation meeting was held. Employees were provided with the opportunity to have an interpreter however this was declined on the basis that the were proficient in English.
On 7 September 2021 a consultation meeting was held with all Darwin employees.
On 13 September 2021 consultation took place in relation to the ballot process.
In all the circumstances, I am satisfied the steps taken by the Applicant satisfy the requirements of s.220(2)(b) of the Act.
Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?
S.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.
Erin Englezakis declared in the Form F24 that six employees are covered by the Agreement, all six cast a valid vote and all six voted to approve the termination of the Agreement.
Having considered the materials 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 1 November 2021 the Commission directed that:
(a) by no later than 4:00 pm on Tuesday, 2 November 2021, the Applicant must email a copy of the directions to its employees covered by the Agreement and any relevant employee organisations (if any);
(b) by no later than 4:00pm on Thursday, 4 November 2021, a director or officer of the Applicant must file in the Commission and serve on any relevant employee organisations (if any), a statutory declaration confirming compliance with the directions; and
(c) by no later than 4.00pm Thursday, 11 November 2021, any employee or relevant employee organisations (if any) which oppose the termination of the Agreement must file in the Commission any submissions, written statements and documents they rely upon in opposition to the termination of the Agreement.
The Commission also directed that if any party was seeking a hearing, then this request should be made along with the filing of materials as per the above program and that in the absence of such a request the matter will be determined on the papers.
On 4 November 2021, Ms Englezakis filed a statutory declaration (Statutory Declaration) confirming that the directions had been emailed to employees on 2 November 2021.
No submissions in opposition were filed by any employee.
Having considered the material before the Commission, I am satisfied that there are no other reasonable grounds for believing that the 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 Applicant indicated in its Form F24 that there are not any employee organisations covered by the Agreement.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.
No submissions in opposition were made or filed.
S.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 of the Act, the termination will come into effect from 29 November 2021.
An Order to this effect PR736284 has been issued concurrently with this decision.
COMMISSIONER
[1][2012] FWAA 8138.
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