Ducala Pty Ltd T/A Northpoint Toyota

[2016] FWCA 7274

[2016] FWCA 7274

FAIR WORK COMMISSION

DECISION

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

Ducala Pty Ltd T/A Northpoint Toyota
(AG2016/5950)

NORTHPOINT TOYOTA ENTERPRISE AGREEMENT 2012 - BHB-B

Vehicle industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 11 OCTOBER 2016

Application for termination of the Northpoint Toyota Enterprise Agreement 2012 - BHB-B.

[1] On 23 September 2016, Ducala Pty Ltd T/A Northpoint Toyota (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Northpoint Toyota Enterprise Agreement 2012 - BHB-B (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“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.”

[3] Directions were issued on 26 September 2016, directing the Employer as follows:
“[3] The FAIR WORK COMMISSION DIRECTS Ducala Pty Ltd T/A Northpoint Toyota (Northpoint) to provide the Form F24A Statutory Declaration provided to the Commission by Northpoint with the application, together with these directions, to all employees whose terms of employment are regulated by this agreement, prior to close of business on Monday 3 October 2016.”

[4] Confirmation of compliance with this direction was provided on 10 October 2016.

[5] The directions further advised:

“[4] Any party wishing to be heard with respect to this application is invited to contact my office on or before Monday 10 October 2016 with advice to this effect. In the event of such contact being made, the application will be listed for hearing shortly after that date. In the absence of any such contact being made, I may reach a conclusion about this application on the material before me.”

[6] Based on the material that is before me, including the Statutory Declaration sworn by Nikki Milnes of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[7] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

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