G & K O'Connor Pty Ltd T/A G & K O'Connor Pty Ltd

[2024] FWCA 1940

[2024] FWCA 1940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

G & K O'Connor Pty Ltd T/A G & K O'Connor Pty Ltd

(AG2024/1803)

G.&K. O'CONNOR PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 29 MAY 2024

Application for termination of the G & K O'Connor Pty Ltd Enterprise Agreement 2021

1. On 24 May 2024, G & K O'Connor Pty Ltd T/A G & K O'Connor Pty Ltd (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the G & K O'Connor Pty Ltd Enterprise Agreement 2021 (2021 Agreement).

1. The 2021 Agreement is a single enterprise agreement. It was approved by Deputy President Boyce on 15 February 2022.[1] The nominal expiry date of the Agreement is 15 February 2025.

1. On 24 April 2024, the Applicant submitted an application for approval of the G & K O'Connor Pty Ltd Enterprise Agreement 2024 (2024 Agreement). The 2024 Agreement was approved on 2 May 2024 with the proviso that,[2]

‘The Agreement is approved and, in accordance with s.54 of the Act, will operate from the later of the following:

a) 7 days after it is approved (i.e. 9 May 2024);
b) the date on which the G.  & K.  O’Connor Pty Ltd Enterprise Agreement 2021 nominally expires (i.e. 15 February 2025) or is terminated.’

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:

‘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 Statutory Declaration made on 24 May 2024 by Tim O’Connor for the Applicant. Mr O’Connor declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a)On 2 May 2024, the Applicant sent an email to all employees stating that:

·     the 2024 Agreement has been approved by the Commission;

·     the 2024 Agreement cannot operate until the 2021 Agreement has been terminated or reached its nominal expiry date (i.e. 15 February 2025); and

·     a vote on the termination of the 2021 Agreement would be held shortly.

b)On 10 May 2024, the Applicant informed its employees with the time, date and method of voting, namely via secret ballot from 10 am on 17 May 2024.

c)On 17 May 2024 at 10 am, the voting commenced on the termination of the 2021 Agreement.

d)On 17 May 2024 at 10:30 am, the voting concluded.

1. The termination was agreed to on 17 May 2024. There were 9 employees covered by the agreement and 8 valid votes cast. Of the votes cast, 8 employees voted to terminate the agreement. The Application was made within 14 days of the termination being agreed and was accompanied by the appropriate declaration.

1. On 27 May 2024, the application was allocated to my Chambers. On the same day, the AMWU’s views were sought.

1. On 28 May 2024, the AMWU confirmed via email that it did not oppose the termination.

1. Based on 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 of the Act have been met.

1. In accordance with s.224 of the Act, the termination will come into effect on 29 May 2024. An Order to this effect [PR775406] has been issued concurrently with this decision.

COMMISSIONER

[1] [2022] FWCA 505.

[2] [2024] FWCA 1613, [7].

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