Ejack Pty Ltd

[2014] FWCA 1456

[2014] FWCA 1456

FAIR WORK COMMISSION

DECISION

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

Ejack Pty Ltd
(AG2014/3377)

LISMORE SQUARE COFFEE CLUB EMPLOYEE COLLECTIVE AGREEMENT

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 MARCH 2014

Application for termination of the Lismore Square Coffee Club - Employee Collective Agreement.

[1] This is an application, filed by Ejack Pty Ltd (the ‘applicant’), pursuant to s 222 of the Fair Work Act 2009 (the ‘Act’) to terminate the Lismore Square Coffee Club Employee Collective Agreement (the ‘Agreement’). Relevantly, the Agreement has passed its nominal expiry date. The Agreement covers 17 employees who would otherwise be covered by the Restaurant Industry Award 2010 [MA000119] (the ‘Modern Award’).

[2] The relevant provisions of the Act governing this application are set out at ss 220-224 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.

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 of Mr J Kenny, Business Owner/Manager (s 222(2)). Mr Kenny said that the employees had been notified of the pending vote on 7 February 2014, as a previous vote conducted by way of a ‘petition sheet’ was insufficient to discharge the applicant’s obligations under s 220(2)(b) of the Act. I am now satisfied that the applicant gave the employees covered by the Agreement a reasonable opportunity to consider whether they supported the termination of the Agreement (s 220(2)). In a secret ballot held between 8 and 12 February 2014, all 13 of the employees who voted, agreed to terminate the Agreement, satisfying s 221(1) of the Act. Mr Kenny further deposed that it was intended that employees would now be covered by the Modern Award. For the sake of completeness, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination of the Agreement (s 223(c)). There is no employee organisation covered by the Agreement.

[4] Having considered the applicant’s submissions and upon reviewing the application and the statutory declaration of Mr Kenny, I am satisfied that all the requirements of the Act, in particular, ss 220, 221, 222 and 223 have been met. Accordingly, the Lismore Square Coffee Club Employee Collective Agreement is terminated. Pursuant to s 224 of the Act, the termination is to take effect on and from 4 March 2014.

DEPUTY PRESIDENT

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<Price code A, AC315382,  PR548244>