Fredon (Qld) Pty Limited T/A Fredon

[2024] FWCA 792

[2024] FWCA 792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fredon (Qld) Pty Limited T/A Fredon

(AG2024/336)

FREDON (QLD) PTY LIMITED AND CEPU ELECTRICAL DIVISION CROSS RIVER RAIL PROJECT AGREEMENT 2021-2024

Electrical contracting industry
COMMISSIONER DURHAM	BRISBANE, 1 MARCH 2024

Application for termination of the Fredon (Qld) Pty Limited and CEPU Electrical Division Cross River Rail Project Agreement 2021-2024

1. On 15 February 2024, Fredon (Qld) Pty Limited T/A Fredon (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the Fredon (Qld) Pty Limited and CEPU Electrical Division Cross River Rail Project Agreement 2021-2024 (Agreement) under s.222 of the Fair Work Act 2009 (Act). The Agreement is a greenfields agreement with a nominal expiry date of 31 January 2025.

1. The Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) as an employee organisation. On 21 February 2024, the ETU advised by way of email to my Chambers that they had no objections to the application.

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:

““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.”

1. The application was supported by a Form F24A Statutory Declaration made on 15 February 2024 by Mr Leigh Sargent in support of the application to terminate the Agreement.

1. Mr Sargent declared that no employees are covered by the Agreement, and the termination was agreed to on 8 November 2023 (without a vote process taking place) as the Applicant’s work on Cross River Rail Project had ceased by this date.

1. The application was not lodged within 14 days of the termination being agreed to, as required by s.222(3)(a) of the Act.

1. Section 222(3)(b) of the Act provides the Commission with the ability to extend the 14 day lodgement period if it considers that it is fair to do so.  In the circumstances I find that it is fair to extend the lodgement period to 14 February 2024 and as such the application has been made within the required time period.

1. Based upon the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223(a) and (b) of the Act have been met. I am also satisfied, on the evidence before me, that there are no other reasonable grounds for believing that relevant employees have not approved the termination (s.223(c)) and that it is appropriate to approve the termination of the Agreement.

1. In accordance with s.223 of the Act, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination of the Agreement will come into effect from the date of this Decision. I Order accordingly.

COMMISSIONER

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