HPPL Services Pty Ltd T/A Hancock Agriculture

[2023] FWCA 930

[2023] FWCA 930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

HPPL Services Pty Ltd T/A Hancock Agriculture

(AG2023/801)

GUNNEE FEEDLOT P/L AUSTRALIAN ENTERPRISE AGREEMENT 2014

Agricultural industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 29 MARCH 2023

Application for termination of the Gunnee Feedlot P/L Australian Enterprise Agreement 2014 – termination approved and effective on and from 29 March 2023

1. On 27 March 2023, HPPL Services Pty Ltd (Applicant) made an application to the Fair Work Commission (Commission) to terminate the Gunnee Feedlot P/L Australian Enterprise Agreement 2014 (Agreement) under s.222 of the Fair Work Act 2009 (Act). The Agreement has a nominal expiry date of 31 May 2018.

1. 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.”

1. The application was supported by a Statutory Declaration made on 23 March 2023 by Ben Jensen, HR Manager of the Applicant. Mr Jensen declared that the following steps were taken by the Applicant to ensure that the relevant employee, Mr Nick Bendall, was given a reasonable opportunity to decide whether he wanted to approve the termination:

a)on 10 November 2022, Mr Jensen attended the Gunnee Feedlot to explain the effects of termination to Mr Bendall by reference to a comparison document comparing the terms of the Agreement to the terms of the Pastoral Award 2020;

b)on 11 January 2023, Mr Jensen attended the Gunnee Feedlot and had a similar discussion with Mr Bendall; and

c)on 21 March 2023, Mr Jensen spoke to Mr Bendall advising that he would be asked to vote on the termination of the Agreement. Later that day, he sent an email to Mr Bendall outlining the voting process and attaching the comparison document referred to above.

1. Mr Jensen also declared that the email sent to Mr Bendall on 21 March 2023 notified Mr Bendall of the time and place at which the vote was to occur and the voting method to be used.

1. On 21 March 2023 voting commenced. Voting concluded that same day. Mr Jensen declared that on 21 March 2023, when votes were checked, that a majority of employees who cast a valid vote approved of the termination (one employee covered by the Agreement cast a valid vote to approve termination of the Agreement).

1. Based upon the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223(a) and (b) of the Act have been met. I am also satisfied, on the evidence before me, that there are no other reasonable grounds for believing that relevant employees have not approved the termination (s.223(c)) and that it is appropriate to approve the termination of the Agreement.

1. In accordance with s.223 of the Act, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination of the Agreement will come into effect from the date of this Decision (i.e. 29 March 2023).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE409455  PR760680>