Goondiwindi Co-operative Society Limited T/A Foodworks Goondiwindi

[2013] FWCA 3525

[2013] FWCA 3525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Goondiwindi Co-operative Society Limited T/A Foodworks Goondiwindi
(AG2013/6509)

GOONDIWINDI CO-OPERATIVE SOCIETY LIMITED TRADING AS FOODWORKS SUPERMARKET ENTERPRISE AGREEMENT

Retail industry
COMMISSIONER SPENCER	BRISBANE, 14 JUNE 2013

Application for termination of the Goondiwindi Co-operative Society Limited Trading as Foodworks Supermarket Enterprise Agreement.

[1] On 20 May 2013 Goondiwindi Co-operative Society Limited T/A Foodworks Goondiwindi (“the Employer”) filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”)to terminate the Goondiwindi Co-operative Society Limited Trading as Foodworks Supermarket Enterprise Agreement (“the Agreement”).

[2] After reviewing the Agreement it was clear that the nominal expiry date of the Agreement was 30 June 2013. The application to terminate pursuant to s.225, being an application to terminate an agreement after the nominal expiry date, was therefore incorrectly filed.

[3] After the Applicant, on request, provided further correspondence and materials it was clear that the application had been incorrectly completed. The Applicant filed information regarding the requirements of s.223 of the Act. In the circumstances therefore it was considered appropriate to allow an amendment to the application, pursuant to s.586(a) of the Act, to reflect an application pursuant to s.222 of the Act.

[4] 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 FWA 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, FWC must approve the termination if:

(a) 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) 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) FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) 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.

[5] Section 220(2) of the Act provides:

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.

[6] Section 221 of the Act provides, so far as is relevant to this application:

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

[7] Mr Daniel Johnston, General Manager of the Applicant provided a statutory declaration which outlined the process taken for the employees to approve the termination of the Agreement.

[8] Further material was provided in an extract from the “Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement”. While this form is not prescribed for an application of this nature the Applicant has helpfully used this as a template to the sections regarding the notification of vote, the discussions had between the Applicant and employees, as well as the results of the vote.

[9] This material satisfies the Commission that the Applicant took all reasonable steps to notify employees of the time and place for the vote, as well as the voting method to be used. The Commission is also satisfied that employees were given a reasonable opportunity to consider their vote. Therefore the Commission is satisfied in accordance with s.223(a).

[10] The material filed in support of the application evidences that there are some 65 employees covered by the Agreement. Forty-six of these employees cast a valid vote with 40 approving the termination. Section 221(1) of the Act is satisfied and therefore the Commission is satisfied of those matters in s.223(b) of the Act.

[11] There are no other reasonable grounds for considering that the employees have not agreed to the termination. There are no employee organisations that are covered by the Agreement.

[12] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[13] In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

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