IFM Investors Pty Ltd T/A IFM Investors Pty Ltd
[2023] FWC 1504
•22 JUNE 2023
| [2023] FWC 1504 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement
IFM Investors Pty Ltd T/A IFM Investors Pty Ltd
(AG2023/1774)
IFM INVESTORS AGREEMENT 2018
| Banking finance and insurance industry | |
| COMMISSIONER PERICA | MELBOURNE, 22 JUNE 2023 |
Application for termination of the IFM Investors Agreement 2018
On 6 June 2023, the legal representatives for IFM Investors Pty Ltd (IFM Investors) made an application under s.222 of the Fair Work Act 2009 for the termination of the IFM Investors Agreement 2018 (the Agreement), an enterprise agreement that had passed its nominal expiry date.
Legislation
Sections 220 to 224 of the Act are relevant this application.
“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.
Multi-enterprise agreement
(2) 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.
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.”
Evidence on the opportunity to decide, the vote and other matters
The application attached a statutory declaration made on 5 June 2023 by Ms Michelle Leah, the Executive Director of People and Culture at IFM Investors, which declared the following:
· The nominal expiry date of the Agreement was 13 December 2021.
· On 15 May 2023, employees covered by the Agreement were sent an email with a briefing paper (a copy of which was attached to the application) which contained details of the proposed termination of the Agreement and to decide if they wanted to approve the termination of the Agreement. The briefing paper included:
oInformation on the proposed termination of the Agreement.
oBackground on the IFM Investors enterprise agreement negotiations.
oAn explanation of the effect of the coming into operation of the IFM Investors Agreement 2022. It meant the coverage of the Agreement only extended to the seven employees in the Global Strategy Team, who are senior executives.
oInformation about the terms and condition of employment that would apply to the employees in the event the Agreement was terminated.
oThe time frame and method for voting in relation to the proposed termination.
The declaration noted the steps taken by IFM Investors to notify all seven employees covered by the Agreement of the vote which included:
· On 15 May, an email was sent to the seven employees providing them with information regarding the time, place and voting method. It informed the employees that a vote would be conducted by a link to an online form between 24 and 26 May 2023.
· On 24 May, an email was sent to the seven employees with a link to the online form where the voting could be completed between 24 and 29 May 2023.
· On 29 May, an email was sent to the seven employees to remind them that 29 May was the last day for voting regarding the termination of the Agreement.
On 7 June 2023, I issued Directions requiring IFM Investors to serve the application and supporting documents as well as a copy of the Directions on all seven employees. They were advised to contact my Chambers if they wished to express any views.
On that same date, IFM Investors served the application and the supporting documents on the Finance Sector Union of Australia (FSU), which is the employee organisation covered by the Agreement.
On 8 June 2023, an employee of the FSU contacted my chambers by email and indicated that the FSU “neither supported nor opposed” the termination of the Agreement.
On 10 June 2023, IFM Investors sent an email to its seven employees containing the application and supporting documents along with the Directions issued. The email stated (amongst other things) that if an employee opposed the termination application, they were to send a submission to my Chambers. None of the seven employees covered by the Agreement contacted my Chambers.
Conclusions
Based on the material filed in this matter I find:
· The seven employees were given a reasonable opportunity to decide whether they wanted to approve the proposed termination. Accordingly, s.220(2) of the Act was complied with.
· Six of the seven employees cast a valid vote in favour of the terminating the Agreement, which was a single enterprise agreement, as required by s.221(1) of the Act.
· The application was made on 6 April 2023, eight days after the last day of the employee vote on the termination of the agreement, which was within the fourteen days prescribed by s.222(3)(a) of the Act.
· On the facts declared in the statutory declaration made by Ms Michelle Leah, and on the failure of any of the seven employees to take up the invitation to express their views on the termination, I consider there are no reasonable grounds for believing the employees had not agreed to the termination under s.223(c).
· The equivocal response of the FSU is a neutral “view” for the purposes of s.223(d).
I am therefore satisfied that each of the requirements of ss.220, 221, 222 and 223 of the Act have been met. It is appropriate to terminate the Agreement. The termination will come into effect from the date of this decision.
COMMISSIONER
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