Fairfax Regional Printers Pty Ltd

[2019] FWC 1879

[2019] FWC 1879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Fairfax Regional Printers Pty Ltd
(AG2019/207)

FAIRFAX MEDIA PRINT & LOGISTICS NEWCASTLE ENTERPRISE AGREEMENT 2016

[AE422596]

Graphic Arts
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 27 MARCH 2019

Application for termination of the Fairfax Media Print & Logistics Newcastle Enterprise Agreement 2016 – no employees covered - not genuinely agreed - application dismissed.

[1] On 31 January 2019 Fairfax Regional Printers Pty Ltd applied for the termination of the Fairfax Media Print & Logistics Newcastle Enterprise Agreement 2016 (the Agreement), under s.222 of the Fair Work Act 2009 (the Act).

[2] The application specified at Clause 4.1 that the termination of the agreement was agreed to on 30 January 2019.

[3] The application was supported by a statutory declaration sworn by Phillip Amos, Deputy Employee Relations Manager – Fairfax Regional Printers Pty Ltd (the declaration), which declared, among other things, that there were 0 employees covered by the agreement,
0 employees cast a valid vote and 0 employees voted to terminate the agreement.

[4] As to what action was taken to notify all relevant employees of the date and place at which the [termination] vote was to occur and the voting method to be used, Mr Amos declared: 1

“[a]s there are no employees covered by the agreement there was no requirement to notify the relevant employees.”

[5] As to the date voting commenced and the date that the termination was agreed to, Mr Amos declared: 2

“[a]s no employees are covered by the agreement no vote was conducted. The AMWU agreed to support the application on 30th January 2019.”

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” (AMWU) are covered by the Agreement and were said to have been notified of the present application on 16 January 2019.

[7] The application is supported by a copy of an email from Margaret Hogan, addressed to Phil Amos and dated 30 January 2019, with the subject heading “Ormiston and Beresfield Enterprise Agreement”. It states (excluding formalities):

“The AMWU refers to your letter dated 16 January regarding an application to terminate both enterprise agreements. As both sites are closed and sill [sic] not re open, the AMWU has no grounds on which to oppose the applications.”

[8] On 4 February 2019, after reviewing all the material, I advised the applicant of my preliminary view that it would not be possible to terminate the Agreement under s.222 of the Act “because there are no employees covered by the Agreement and there has not been, nor can there be, an agreement terminate it within the meaning given by s.221 of the Act.”

[9] Further submissions pressing the application and requesting me to reconsider my preliminary view regarding jurisdiction were received on 14 March 2019. I have taken these submissions into account in my decision.

The legislation

[10] 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. Section 223 provides as follows:

“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.”

[11] Section 221(1) of the Act defines when a termination of an enterprise agreement is agreed to thus:

“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.”

Consideration

[12] The termination of an enterprise agreement under s.222 of the Act is a termination by consent between the employer and the employees; that is, a termination by agreement. As there were no employees covered by the agreement, I cannot find that the employees covered by the agreement have been asked to approve a proposed termination of the agreement, nor that a majority of the employees who cast a valid vote approve the termination. No employees voted.

[13] Similarly I am not satisfied that the employer complied with subsection 220(2) of the Act, or that the termination was agreed to in accordance with subsection 221(1) of the Act, nor that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[14] I do not accept the proposition advanced by the applicant “that agreement has been reached between the employer and the employees covered by the agreement by virtue of the employer agreeing to terminate the agreement being the only party pursuant to s.219(1)(a) in a position to agree to the termination.” 3

[15] I have taken into account the views of the employee organisation covered by the Agreement. The email dated 30th January 2019 from the AMWU does not demonstrate that the termination of the agreement was agreed to on that date.

[16] In consideration of the material before me, I am not satisfied that the requirements of s.223 of the Act have been met. The application to terminate the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE422596  PR706099>

 1   Part 2.2 of the declaration

 2   Part 2.3 of the declaration

 3   Paragraph 9 of the Applicant’s submissions to the Fair Work Commission in response to the preliminary view of the

Commission regarding the interpretation of s.221 and s.222 of the Fair Work Act 2009.