Hellmuth Trust T/A H.E.M.E. Pty Ltd

[2019] FWCA 3244

[2019] FWCA 3244

FAIR WORK COMMISSION

DECISION

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

Hellmuth Trust T/A H.E.M.E. Pty Ltd
(AG2019/1400)

H.E.M.E. PTY LTD ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 10 MAY 2019

Application for termination of the H.E.M.E. Pty Ltd Enterprise Agreement 2016

[1] On 29 April 2019 Hellmuth Trust T/A H.E.M.E. Pty Ltd made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the H.E.M.E. Pty Ltd Enterprise Agreement 2016 (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. Section 223 provides as follows:

“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] The application was supported by a Form F24A statutory declaration made by Ms Kym Hellmuth, Company Manager of H.E.M.E. Pty Ltd which declared, amongst other things, that the 29 employees covered by the Agreement were notified of the time and place of the vote and that of the 22 votes cast, 20 employees approved the termination of the Agreement.

[4] Ms Hellmuth stated in her statutory declaration that the Applicant, “Discussed at a meeting with all staff the reasons why we wanted to terminate agreement and handed out a letter to supporting discussion of potential termination…”.

[5] After this matter was allocated to me I directed the Applicant to provide a copy of the letter that had been given to the employees covered by the Agreement and to provide additional information about how the vote was conducted.

[6] On 10 May 2019 the Applicant produced to my chambers a copy of the letter that had been given to the relevant employees. I note that that letter included the following paragraph:

“Employment Contract

Please note that under this individual contract of employment all your working conditions including hours of work, pay rates, superannuation contributions and other benefits including leave entitlements will remain unchanged.”

[7] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[8] The termination will take effect today, 10 May 2019.

COMMISSIONER

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