Hardline Group Pty Ltd

Case •

[2022] FWCA 235

•

27 JANUARY 2022
[2022] FWCA 235

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

Hardline Group Pty Ltd

(AG2021/8740)

Hardline Group Pty Ltd Enterprise Agreement 2018

Building, metal and civil construction industries

Commissioner Matheson

SYDNEY, 27 JANUARY 2022

Application for termination of the Hardline Group Pty Ltd Enterprise Agreement 2018.

  1. On 3 December 2021, Hardline Group 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 Hardline Group Pty Ltd Enterprise Agreement 2018 (Agreement).

  1. The Agreement is a single enterprise agreement. It was approved by Deputy President Kovacic on 7 June 2019.[1]

  1. The nominal expiry date of the Agreement is 31 December 2021.

Legislation

  1. The relevant provisions of the Act are as follows:

“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.

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.

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.

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.

224  When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration – s.222 of the Act

Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?

  1. Clause 1 of the Agreement names Hardline Group Pty Ltd as the employer covered by the Agreement. This is the Applicant. Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant has standing to make the Application.

Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?

  1. Subrule 26(1) of the Fair Work Commission Rules 2013 (Rules) provides that:

    “An application under section 222 of the Act for approval of termination of an enterprise agreement or a collective agreement-based transitional instrument must be accompanied by a declaration by the applicant or an authorised employee of the applicant setting out the basis upon which the Commission can be satisfied that the requirements of section 223 of the Act have been met.”

  2. The Application is accompanied by four separate versions of a Form F24A – declaration in support of termination of an enterprise agreement completed by Rodney James Williams (Williams Form F24A), Levi James Condon Moran (Moran Form 24A), Andrew Dean Clark (Clark Form F24A) and Aden Joel Wallace (Wallace Form F24A).

  1. The Commission sought confirmation that each of the persons who have completed the Form F24As have done so in their capacity as an ‘authorised employee of the applicant’. This confirmation was provided by the Applicant on 5 January 2022.

  1. I am satisfied that the Application is accompanied by the material required by the Rules and that the requirements of s.222(2) of the Act have been met.

Has the Application been made within the required timeframe per s.222(3)(a)?

  1. S.222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.

  1. It is declared in the Williams Form F24A, Moran Form F24A, Clark Form 24A and Wallace Form 24A that the termination was agreed on 26 November 2021.

  1. The Commission’s records show the Application was filed on 3 December 2021, within than 14 days after the termination was agreed.

  1. I am satisfied that the requirements of s.222(3) of the Act have been met.

Consideration – s.223 of the Act

  1. I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

S.220(2)

  1. S.223(a) requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.

Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?

  1. It is declared in the Williams Form F24A, Moran Form F24A, Clark Form 24A and Wallace Form 24A that, on 16 November 2021, Rodney Williams contacted all staff via telephone to ensure they had received an email, answer any queries they had and confirm the voting deadline of Friday 26 November 2021.

  1. The Commission sought further information regarding how employees were notified of the time and place at which the vote would occur and the voting method that would be used. The Applicant provided further information on 5 January 2022 addressing this requirement.

  1. Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.

Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?

  1. It is declared in the Williams Form F24A, Moran Form F24A, Clark Form 24A and Wallace Form 24A that:

·   On 15 December 2021, a meeting between Ms Tolliday of the Applicant and Mr Williams was occurred in which the reasons for the proposed termination of the Agreement were confirmed.

·   On 15 December 2021, Ms Tolliday emailed employees attaching a copy of the Agreement and a summary of its constraints.

·   On 16 December 2021, Mr Williams communicated the minutes of the meeting to employees (via telephone where an employee was not available in person) and asked them to vote via email by Friday 26 November 2021 on whether they would agree to terminate the current Agreement and move to individual contracts.

  1. The Commission sought further information regarding the information provided to employees and this was provided on 5 January 2022.

  1. Having considered the materials before me, I am satisfied the steps taken by the Applicant meet the requirements of s.220(2)(b) of the Act.

Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?

  1. S.223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.

  1. It is declared in the Williams Form F24A, Moran Form F24A, Clark Form 24A and Wallace Form 24A that eight employees are covered by the Agreement, five cast a valid vote and seven voted to approve the termination of the Agreement. The Commission sought further clarification as the number of employees stated to have voted to approve the termination is greater than the number of employees who cast a valid vote. The Applicant clarified that while seven employees voted ‘verbally’ to approve the agreement only five of these actually cast a valid vote to approve the agreement.

  1. Having considered the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.

Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

  1. On 8 December 2021 the Commission directed that:

1. By no later than 4:00pm on Thursday, 9 December 2021 the Applicant email a copy of the directions to its employees covered by the Agreement and any relevant employee organisations (if any). 

2. By no later than 4:00pm on Monday, 13 December 2021, a director or officer of the Applicant file in the Commission and serve on any relevant employee organisations (if any), a statutory declaration confirming compliance with the directions. 

3. By no later than 4:00pm on Monday, 20 December 2021, any employee or relevant employee organisations (if any) which oppose the termination of the Agreement file in the Commission any submissions, written statements and other documents they rely upon in opposition to the termination of the Agreement. 

  1. These directions also requested that any party seeking a hearing make this request along with the filing of materials per the above program. The directions advised the parties that in the absence of such a request, the matter would be determined on the papers.

  1. The Respondent filed a statutory declaration confirming that it had emailed a copy of the directions to its employees.

  1. No submissions in opposition to the termination application were received.

  1. Having considered the material before the Commission, I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)

  1. The Applicant indicated in its Form F24 that there are not any employee organisations covered by the Agreement.

Conclusion

  1. Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.

  1. S.224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.

  1. In accordance with s.224 of the Act, the termination will come into effect from 27 January 2022.

  1. An Order to this effect PR737835 has been issued concurrently with this decision.


COMMISSIONER


[1] [[2019] FWCA 3985].

Printed by authority of the Commonwealth Government Printer

<AE503826  PR737834>

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