DUO Services Australia Ltd

[2020] FWCA 5686

[2020] FWCA 5686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

DUO Services Australia Ltd
(AG2020/3210)

HOME HELP SERVICE ACT LIMITED ENTERPRISE AGREEMENT 2012

Social, community, home care and disability services
DEPUTY PRESIDENT DEAN	SYDNEY, 28 OCTOBER 2020

Application for termination of the Home Help Service ACT Limited Enterprise Agreement 2012.

[1] On 22 October 2020 DUO Services Australia Ltd (DUO) made an application pursuant to s.222 of the Fair Work Act 2009 to terminate the Home Help Service ACT Limited Enterprise Agreement 2012 (the Agreement).

[2] Sections 219 to 224 of the Act set out the relevant provisions governing this application:

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(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.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by the FWC

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

Limitation—greenfields agreement

(3) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

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.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-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 of each individual employer who cast a valid vote have approved 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.

[3] The application was supported by a statutory declaration made by Mr Stephen Doley, State Director of Life Without Barrier (LWB). Mr Doley stated that staff forums had been conducted since late January 2020 to inform employees of the proposed integration of DUO with LWB. DUO employees were advised of the employer’s intention to transfer their employment to LWB and the proposed termination of the Agreement and that upon termination of the Agreement, they would be covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).

[4] Mr Doley explained that the employer intended to ask employees to vote for the proposed termination in March 2020, however the vote was deferred due to the disruption arising from the COVID-19 pandemic. Between March and September 2020, employees were invited to attend Q&A sessions, were explained the impact of the termination of the Agreement on them, and were provided with information outlining the key differences between the Agreement and the Award.

[5] On 21 September 2020 all employees were notified by email that a vote for approval of the termination of the Agreement would be conducted from 28 September. On 21 September 2020 all employees were reminded by way of a SMS message of the date and time of the vote and details of the voting method. It was declared that the voting process concluded on 11 October 2020 and of a total of 67 employees who cast a valid vote 61 voted to approve the termination of the Agreement.

[6] Having considered the material before me, I am satisfied that the requirements of the Act for the termination of an enterprise agreement have been met and that there are no reasonable grounds for believing that the employees have not agreed to the termination. Pursuant to s.233 of the Act, I therefore must approve the termination of the Agreement.

[7] The termination of the Agreement is approved. In accordance with s.224 of the Act, the termination operates on and from 28 October 2020.

DEPUTY PRESIDENT

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