Guide Dogs Association of SA & NT Inc

[2017] FWCA 563

[2017] FWCA 563

FAIR WORK COMMISSION

DECISION

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

Guide Dogs Association of SA & NT Inc
(AG2016/7806)

GUIDE DOGS ASSOCIATION OF SA.NT INC ENTERPRISE AGREEMENT 2013-2016

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 27 JANUARY 2017

Application for termination of the Guide Dogs Association of SA.NT Inc Enterprise Agreement 2013-2016.

[1] This decision concerns an application made on 16 December 2016 by the Guide Dogs Association of SA & NT Inc (the Association) pursuant to s.222 of the Fair Work Act 2009 (the FW Act) to terminate the Guide Dogs Association of SA & NT Inc Enterprise Agreement 2013-2016 (the 2013 Agreement).

[2] Sections 219 to 222 of the FW Act provide as follows:

“219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or
(b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by the FWC

(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.

Limitation—greenfields agreement

(2) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

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.

(3) 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.


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.

Multi-enterprise agreement

(4) If the employees of each employer covered by a multi-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 of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s 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 the 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 the FWC considers it fair to extend that period—within such further period as the FWC allows.”

[3] The 2013 Agreement has a nominal expiry date of 30 June 2016. When approved by the Commission, the 2013 Agreement covered and applied to most of the various classifications and operations of the Association including Operational Managers and Casual Breeding Centre Attendants (the relevant employees). The CPSU, the Community and Public Sector Union and the Australian Municipal, Administrative, Clerical and Services Union (ASU) are covered by the instrument.

[4] In 2016, a new enterprise agreement 1 was made and approved and this, in effect, replaced the 2013 Agreement. However, there were some exclusions from the scope of the 2016 instrument that were agreed as part of that process. Those exclusions included the relevant employees who remain subject to the terms of the 2013 Agreement.

[5] Ms Haar, solicitor appearing on behalf of the Association, submitted that the parties had agreed to terminate the 2013 Agreement, that the agreement to terminate remained available to the parties notwithstanding the expiry of that instrument, and that all of the requirements for a termination had been met. In response to clarification sought by the Commission, Ms Haar indicated that the relevant employees were operationally distinct from the other employees now covered by the new enterprise agreement, that their exclusion had been agreed as part of the negotiation process and that the Casual Breeding Centre Attendants would, if the application was granted, continue to be subject to common law contracts broadly based upon the Animal Care and Veterinary Services Award 2010.

[6] Mr White for the CPSU appeared in the matter and did not oppose the application. Ms Purdy of the ASU advised the Commission that the union did not have members directly concerned with the application and did not oppose the termination as sought.

[7] I am satisfied that the parties are able to make this application pursuant to s.222 of the FW Act, despite the fact that the 2013 Agreement has passed its expiry date. In that regard, I note that s.225 of the FW Act enables a relevant party to apply to terminate an enterprise agreement after the nominal expiry date. In that case, the Act contemplates an application by any single party and different considerations apply to the potential termination of the instrument by virtue of s.226. Those considerations include a public interest test, which does not apply in relation to s.222 “agreed” termination applications.

[8] In my view, s.222 remains available to the parties in these circumstances and there is no express or implied reason to apply the FW Act in a manner which means that s.226 is the only option available to parties to terminate a nominally expired enterprise agreement. That is, the 2013 Agreement continues in operation, 2 the Association (in this case) and the relevant employees continue to be covered by the instrument, and the termination of the Agreement has been agreed following a process provided in the FW Act. This meets the requirements of s.219 and related provisions of the legislation.

[9] Further, I consider that the apparent intention of the FW Act is that parties, in the circumstances evident here, effectively have two options. Make an agreement to terminate, in which case the relevant agreement-making and approval requirements will apply. Or alternatively, a single party may apply, and in that event, there are different approval requirements that apply, including a public interest test which would appear to be apposite given the capacity for a unilateral nature of the application to be made in that case.

[10] I note that the approach I have adopted is consistent with other decisions of the Commission 3 and with that set out in the relevant explanatory memorandum.4

[11] The application was made within 14 days after the termination was agreed to and the required declarations that are to accompany such an application are in order.

[12] I must approve the termination if the conditions set out in s.223 are met.

"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."

[13] The Statutory Declaration provided by the Association confirms that there are eleven employees covered by the agreement and the nine employees who voted to terminate the agreement did so following a process required by the FW Act. There were no employees opposed to the termination.

[14] I am also satisfied, based upon the Statutory Declaration, that the employees covered by the Agreement were given reasonable opportunity to decide their position and there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[15] I also consider that it is appropriate to approve the termination taking into account the views of the employee organisations covered by the 2013 Agreement.

[16] The requirements of s.223 have been met and I must therefore approve the termination.

[17] In accordance with s.224 of the FW Act, I have determined that the termination of the 2013 Agreement will operate with effect from 1 February 2017.

COMMISSIONER

 1   Guide Dogs Association of SA.NT Inc Enterprise Agreement 2016-2019 [2016] FWCA 8300.

 2 S.54 of the FW Act.

 3   Including Nowshire Pty Ltd [2010] FWA 2663.

 4   Explanatory Memorandum to the Fair Work Bill 2008 at 924. The Memorandum makes reference to the agreed termination being available at any time whilst the enterprise agreement is in operations. S.54 confirms that a nominally expired enterprise agreement remains in operation, subject to certain caveats that are not applicable here.

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