Entier Australia Pty Ltd T/A Entier Australia Pty Ltd

[2024] FWCA 868

[2024] FWCA 868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Entier Australia Pty Ltd T/A Entier Australia Pty Ltd

(AG2024/345)

ENTIER AUSTRALIA PTY LTD OFFSHORE FACILITIES AGREEMENT 2021

(ODN AG2021/4315)  [AE511096]

Hospitality industry
COMMISSIONER LIM	PERTH, 12 MARCH 2024

Application for termination of the ENTIÉR AUSTRALIA PTY LTD OFFSHORE FACILITIES AGREEMENT 2021

1. This decision concerns an application made by Entier Australia Pty Ltd (the Applicant) to terminate the ENTIÉR AUSTRALIA PTY LTD OFFSHORE FACILITIES AGREEMENT 2021[1] (Agreement).

1. The application was made pursuant to s 222 of the Fair Work Act 2009 (Act) following a vote of employees covered by the Agreement that agreed to the termination.

1. The Agreement is a single enterprise agreement. Its nominal expiry date is 14 April 2025. There are no employee organisations covered by this Agreement.

1. Section 222 of the Act provides:

“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.”

1. Section 223 of the Act provides:

   “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. Section 224 of the Act provides:

   “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.”

1. The Applicant filed the witness statement of the Applicant’s Managing Director, Branislav Fuzik, which outlined the following:

• The Agreement covers nine (9) employees (Affected Employees). There is no union party to the Agreement.

• The Applicant sent an explanatory email to all Affected Employees who were eligible to vote to terminate the Agreement. The email contained a copy of the Entier Australia Pty Ltd Catering Greenfields Agreement 2024.

• Employees were also provided with the direct mobile number and email address of the for the purpose of asking questions about the termination of the Agreement.

  • On 12 February 2024, the Applicant conducted a ballot of the Affected Employees. All of the Affected Employees participated in the ballot, with eight (8) voting in favour of terminating the Agreement.

1. Based on the materials filed with the Application, I am satisfied that:

• the Applicant has complied with the requirements of s 220(2) of the Act;

• the Affected Employees had a reasonable opportunity to decide whether they wanted to approve the termination of the Agreement;

• the employer took all reasonable steps to notify employees of the time, place and method at which the vote would occur and the voting method to be used; and

• the application has been made consistently with the requirements of s 222 of the Act.

1. I am also satisfied that the termination was agreed to by a majority of the Affected Employees who cast a valid vote to approve the termination as required by s 221(1) of the Act. I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.

1. Accordingly, I consider it appropriate to approve the termination. The termination will operate from 12 March 2024.

1. An order giving effect to this decision will separately issue.[2]

COMMISSIONER

[1] AE511096.

[2] PR772243

Printed by authority of the Commonwealth Government Printer

<AE511096  PR772197>