Fire Pro (Qld) Pty Ltd

[2018] FWCA 6931

[2018] FWCA 6931

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Fire Pro (Qld) Pty Ltd

(AG2018/6184)

Fire Pro (Qld) Pty Ltd - Major Commercial Fire Services - Union Collective Agreement 2011 - 2015

Plumbing industry
Commissioner Hunt	BRISBANE, 12 NOVEMBER 2018

Application for termination of the Fire Pro (Qld) Pty Ltd - Major Commercial Fire Services - Union Collective Agreement 2011 - 2015

1. On 12 October 2018 Fire Pro (Qld) Pty Ltd made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Fire Pro (Qld) Pty Ltd – Major Commercial Fire Services - Union Collective Agreement 2011-2015 (the Agreement). The nominal expiry date of the Agreement is 31 October 2015.

1. 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.

1. Section 220 of the Act sets out how an employer may request employees to approve proposed termination of an enterprise agreement, and states:

“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.”

1. It should be noted that prior to the s.222 application having been filed, a s.225 application was made to terminate the Agreement; it having passed the nominal expiry date. While not necessary to accompany a s.225 application, Fire Pro (QLD) Pty Ltd filed 15 declarations completed by all 15 employees covered by the Agreement stating that they each support the termination of the Agreement. The declarations made by the employees are dated between 14 September 2018 and 17 September 2018.

1. Correspondence was received from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Services Union of Australia, Plumbing Division, Queensland Branch (the CEPU), opposing the s.225 application.  The CEPU is covered by the Agreement. 

1. The correspondence noted that while existing employees might have some of their conditions protected by a commitment given by the employer, the commitment did not provide appropriate clarity.  Further, future employees might only be entitled to the conditions of the Plumbing and Fire Sprinkler Award 2010, less than those enjoyed pursuant to the Agreement.   The CEPU stated that it did not wish to be heard, but did wish for its opposition to the s.225 application to be noted in any decision of the Fair Work Commission.

1. Given all 15 employees covered by the Agreement appeared to vote in favour of the termination of the Agreement, it was proposed that the employer might conduct a vote pursuant to s.222 of the Act, which would then not require a consideration pursuant to s.226(a) of the public interest test, perhaps necessitating a hearing of the application.

1. The employer then undertook a vote of its 15 employees on 15 October 2018, the subject of this application. 

1. The application was supported by a Form F24A statutory declaration made by Ms Janine Horrocks, General Manager of Fire Pro (Qld) Pty Ltd which declared, amongst other things, that of the 15 employees covered by the Agreement, 14 were notified of the time and place of the vote and cast a vote to approve the termination of the Agreement.

1. Ms Horrocks declared that one further employee covered by the Agreement could not be contacted before the time of the vote. Ms Horrocks declared that attempts were made to contact that employee by telephone prior to the votes. Ms Horrocks declared that she believed that employee to have been overseas at the time attempts were made to contact them and at the time of the vote, and on that basis the non-voting employee could not be notified of the date and time of the vote or the method to be used and could not participate in the vote.

1. I am satisfied that the employer took all reasonable steps to notify the employees covered by the Agreement of the matters set out in s.220(2) of the Act.

1. In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. Relevant to the correspondence received from the CEPU, it is noted that all 15 employees declared in mid- September 2018 that they no longer wished for the Agreement to apply.  A further vote of employees was taken in mid-October 2018 with 14 employees voting to terminate the Agreement.  Having regard to the correspondence received, and the desire of the CEPU not to further contest the s.225 application beyond its written correspondence, I have taken the CEPU’s views into account in the s.223(d) consideration.

1. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

COMMISSIONER

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