Frozen Distributor Network Pty Ltd T/A Frozen Distributor Network Pty Ltd

[2024] FWCA 4715

[2024] FWCA 4715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Frozen Distributor Network Pty Ltd T/A Frozen Distributor Network Pty Ltd

(AG2024/4980)

METRO ICE CREAM DISTRIBUTION PTY LTD ENTERPRISE AGREEMENT 2018

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 31 DECEMBER 2024

Application for termination of the Metro Ice Cream Distribution Pty Ltd Enterprise Agreement 2018

1. Frozen Distributor Network Pty Ltd T/A Frozen Distributor Network Pty Ltd (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate the Metro Ice Cream Distribution Pty Ltd Enterprise Agreement 2018[1] (the Agreement). The Agreement is expressed to cover the Applicant and its employees who work in Workgroup classifications covered by the Agreement.

1. Section 219 of the Act provides that an employer and the employees covered by an enterprise agreement may jointly agree to terminate the agreement. Section 222(1) of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Fair Work Commission (the Commission) for approval of the termination. Sections 222 and 223 of the Act set out the conditions which must be met for the Commission to approve the termination of an agreement as follows:

“222 Application for FWC 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 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 FWC considers it fair to extend that period— within such further period as 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. Section 224 provides that 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.

Consideration

1. The Agreement is a single enterprise agreement. It was approved by the Commission on 13 February 2019.[2] It commenced operation on 20 February 2019 and has a nominal expiry date of 13 February 2023. It is an agreement made directly with employees and no industrial organisation is covered by it.

Section 222

1. I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by the employer covered by the Agreement. Further, it was accompanied by the material required by the Fair Work Commission Rules 2024, being a Form F24 and a Form F24A declaration setting out the basis upon which the Commission can be satisfied that the requirements of s.223 of the Act have been met.

1. Section 222(3) sets out the timeframe within which an application must be made. In its Form F24, the Applicant stated the termination was agreed to on 29 November 2024 and the application was lodged on 13 December 2024, which is within the 14-day timeframe required by s.222(3)(a) of the Act.

Section 223

1. I must approve the application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.

Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)

1. The employer must take all reasonable steps to notify the employees of the time and date of the vote, the voting method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).

1. In the Form F24A Mr Patrick Fay, General Operations Manager declared the steps taken in respect of s.220(2)(a) and s.220(2)(b).

1. I am satisfied, on the basis of the material before me, that the Applicant has complied with the requirements of s.220(2)(a) and s.220(2)(b).

The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)

1. The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

1. In the Form F24A, Mr Fay, declared that voting commenced on 28 November 2024 and ended on 29 November 2024. Mr Fay provided details about the number of employees covered by the Agreement, how many cast a valid vote and how many voted to approve the termination of the Agreement.

1. I am satisfied, on the basis of the material before me, that a majority of the employees who cast a valid vote approved the termination and as such the termination was agreed to in accordance with s.221(1).

There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

1. I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.

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 – s.223(d)

1. As noted above, the Agreement is expressed to cover the Applicant and its employees who work in Workgroup classifications covered by the Agreement[3] As it does not cover any employee organisation, there are no views to take into account pursuant to s.223(d).

Conclusion

1. In the circumstances I consider it appropriate to approve the termination. The termination will operate from 31 December 2024. An order giving effect to this decision will be issued separately.[4]

DEPUTY PRESIDENT

[1] [2019] FWCA 935.

[2] Ibid.

[3] Ibid.

[4] AE501790  PR782905

Printed by authority of the Commonwealth Government Printer

<AE501790  PR782904>