GPC Asia Pacific Pty Ltd T/A McLeod Accessories

[2021] FWCA 345

[2021] FWCA 345

FAIR WORK COMMISSION

DECISION

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

GPC Asia Pacific Pty Ltd T/A McLeod Accessories
(AG2020/3947)

MCLEOD ACCESSORIES PTY LTD - DISTRIBUTION CENTRE CERTIFIED AGREEMENT 2019-2020

Vehicle industry
COMMISSIONER SPENCER	BRISBANE, 25 JANUARY 2021

Application for termination of the McLeod Accessories Pty Ltd - Distribution Centre Certified Agreement 2019-2020.

[1] GPC Asia Pacific Pty Ltd T/A McLeod Accessories (the Applicant) filed an application under s.222 of the Fair Work Act (the Act). The application is for the termination of the McLeod Accessories Pty Ltd - Distribution Centre Certified Agreement 2019-2020 (the Agreement).

[2] 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.”

[3] Ms Karen Curry, People and Culture Advisor for the Applicant, provided a statutory declaration dated which outlined the process taken for the employees to approve the termination of the Agreement.

[4] In respect of s.220(2)(b) and whether the employees were given a reasonable opportunity to decide whether they wanted to approve the termination, Ms Curry set out the notification and meeting dates. Ms Curry stated that on 25 November 2020, employees were given notice of a meeting to discuss the termination of the Agreement.

[5] During this meeting, employees were given notice of the vote and were provided with a document outlining the proposal to terminate the Agreement and move the employees to the Vehicle Repair Services and Retail Award 2020 (the Award). They were also provided with a summary of key changes that compared coverage for team members under the Agreement and the Award.

[6] The employees were provided with a letter from the Company, setting out that the Agreement had passed its nominal expiry date and that the Company had reviewed the terms and conditions set out in the Agreement and compared those against the broader terms, conditions and practices in place with other GPC Asia Pacific team members to ensure employees are receiving at least what other team members in similar roles across GPC are receiving. Such team members have contracts of employment with GPC Asia Pacific which are underpinned by the Award.

[7] The letter also set out that the parent Award relationship with the Vehicle Repair Services and Retail Award and the fact that the Company’s business is principally connected with the selling of motor vehicle equipment, parts, components and accessories. Therefor it would be more appropriate for the employees to have coverage under the Award than to continue coverage on the separate Enterprise Agreement.

[8] The letter also stated that the termination of the Agreement would ensure employees enjoy parity with their peers in other departments, by ensuring they are all covered by the same industrial instrument and are subject to the same employment terms and conditions. It was also stated that the termination of the Agreement would provide greater opportunity for internal team member movement, as well as efficiencies associated with a reduction in business administration.

[9] The vote took place via an email survey system, ‘exceed’ and the voting period on 26 November 2020, with voting closing on 3 December 2020.

[10] Of the 8 employees who were covered by the Agreement, 8 votes were cast. A majority of voters voted ‘yes’ to terminate the Agreement, with all 8 votes in favour of termination. Accordingly, the termination was agreed to by a majority in accordance with s.221(1). A copy of the voting ledger was provided by Ms Curry in her statutory declaration.

[11] There are no other reasonable grounds for considering that the employees have not agreed to the termination. Upon termination of the Agreement, the employees will be covered by the Vehicle Repair Services and Retail Award 2020.

[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.

[14] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE507335  PR726392>