Fruitlink Pty Ltd T/A Fruitlink

[2022] FWCA 1431

[2022] FWCA 1431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Fruitlink Pty Ltd T/A Fruitlink

(AG2022/1024)

Fruitlink Pty Ltd Employee Collective Agreement 2009

Retail industry
COMMISSIONER HUNT	BRISBANE, 28 APRIL 2022

Application for termination of the Fruitlink Pty Ltd Employee Collective Agreement 2009 - agreement terminated

1. On 6 April 2022, Fruitlink Pty Ltd T/A Fruitlink (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate Fruitlink Pty Ltd Employee Collective Agreement 2009 (the Agreement).

1. The application was made using a Form F24. I notified the Employer that the application referred to a collective agreement-based transitional instrument, within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009: Schedule 3, items 15 and 16). I invited the Employer to complete and lodge a Form F28.

1. On 12 April 2022, the Employer lodged a completed Form F28. I have exercised the discretion in s.586 to treat the application as though it had been made using the Form F28 as filed. An order PR741030 to this effect has been issued.

1. The Agreement covers the Employer and the employees for whom classifications are provided in the Agreement.

1. I am therefore satisfied that the Employer is an employer covered by the Agreement, for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act, and can therefore make this application.

1. Section 223 of the Act sets out the conditions which, if established, require the Commission to terminate the Agreement pursuant to s.222 of the Act. Section 223 provides as follows:

“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 by Ms Susan Markham, General Manager People and Culture of the Employer, which declared, amongst other things, that the 70 employees covered by the Agreement were notified of the time and place of the vote, that the vote would be taken by electronic ballot, and that of the 33 votes cast, 31 employees approved the termination of the Agreement.

1. If the Agreement is terminated, the employees currently covered by the Agreement will instead be variously covered by the Storage Services and Wholesale Award 2020, the Clerks - Private Sector Award 2020, or the Commercial Sales Award 2020.

1. For the purpose of s.223(d) of the Act, I note that there are no employee organisations covered by the Agreement whose views are required to be taken into account.

1. In consideration of the material before me, including the statutory declaration and the supporting material, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The Employer has not nominated a preferred date for the termination of the Agreement.

1. Having regard to s.227 of the Act, the termination will operate from the day of this decision, being 28 April 2022.

COMMISSIONER

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