DXC Enterprise Australia Pty Ltd

[2023] FWCA 1126

[2023] FWCA 1126

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 15 Sch. 3—Termination of transitional instrument

DXC Enterprise Australia Pty Ltd

(AG2023/1046)

EDS (BPA) CREDIT SERVICES AGREEMENT 2004/2007

Business equipment industry
COMMISSIONER MIRABELLA	MELBOURNE, 27 APRIL 2023

Application for termination of the EDS (BPA) Credit Services Agreement 2004/2007.

1. On 13 April 2023, DXC Enterprise Australia Pty Ltd (the Applicant) made an application pursuant to Schedule 3 item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the EDS (BPA) Credit Services Agreement 2004/2007 (the Agreement).

1. Item 15 provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act), which deals with termination of enterprise agreements by employers and employees, applies so that a reference to an “enterprise agreement” includes a reference to a “collective agreement-based transitional instrument”.

Relevant legislation

1. Section 223 of the Act provides as follows:

“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.”

1. The Agreement is a collective agreement-based transitional instrument with a nominal expiry date of 28 March 2007.

1. I am satisfied on the basis of the material filed, including both a statement and a statutory declaration of Mr Rick Stambulic, Employee Relations Manager of the Applicant, that the Applicant has complied with the requirements of s.220(2) of the Act. Employees were advised of the time the vote on the termination of the Agreement would occur and that the vote would be conducted via electronic ballot. Further, I am satisfied that employees were given a reasonable opportunity, through the provision of relevant written material and an information session regarding the effect of termination of the Agreement, to decide if they wanted to approve the proposed termination.

1. I am satisfied that the termination was agreed to in accordance with s.221(1) of the Act in that the majority of employees who cast a valid vote voted in favour of the termination. The Agreement covers five employees. Three out of the four employees who cast a valid vote voted to terminate the Agreement. I am satisfied that there are no grounds for believing the employees have not agreed to the termination.

1. The application has been made within the statutory time period required under s.222(2) of the Act.

1. For these reasons, I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met and I order that the Agreement be terminated.

1. Following further correspondence instigated by me, the Applicant indicated that it seeks for the termination of the Agreement to take effect from 1 July 2023. 

1. The termination of the Agreement is therefore approved with effect from 1 July 2023.

COMMISSIONER

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