iiNET Limited

[2021] FWCA 2065

[2021] FWCA 2065

FAIR WORK COMMISSION

DECISION

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

iiNET Limited
(AG2021/4207)

IINET EMPLOYEE PARTNERSHIP AGREEMENT 2011

Telecommunications services
DEPUTY PRESIDENT CLANCY	MELBOURNE, 15 APRIL 2021

Application for termination of the iiNet Employee Partnership Agreement 2011.

[1] On 16 March 2021, iiNet Limited (iiNet) filed an application (the First Application) for termination of the iiNet Employee Partnership Agreement (2011) (the Agreement) after the nominal expiry date (Form F24B), pursuant to s.225 of the Fair Work Act 2009 (the Act). The application was accompanied by a statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C). The Agreement is a single enterprise agreement which nominally expired on 31 August 2015. 1 The Agreement is expressed to cover iiNet and its employees in the positions set out at clause 35 of the Agreement.2

[2] On 17 March 2021, the First Application was allocated to me for determination.

[3] Following a preliminary review of the First Application, I caused my Chambers to write to iiNet stating that given the employees covered by the agreement had been consulted and asked to vote on the proposed termination, I considered an application was required to be made pursuant to s.222 of the Act and requested iiNet file a Form F24 and Form F24A.

[4] On 31 March 2021, iiNet filed a Form F24 Application for termination of an enterprise agreement by agreement pursuant to s.222 of the Act and a Form F24A Declaration in support of termination of an enterprise agreement (Form F24A) made by Ms Greer Spence, General Manager People Experience (HR) (the Second Application).

[5] The Act relevantly provides as follows:

“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

Section 222

[6] I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by iiNet, a person covered by the Agreement. It was accompanied by the material required by the Fair Work Commission Rules 2013 (being made by Form F24 and accompanied by a Form F24A declaration setting out the basis upon which the FWC can be satisfied that the requirements of s.223 of the Act have been met.

[7] Section 222(3) 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. In its Form F24 iiNet stated the termination was agreed to on 28 February 2021 and that the First Application was filed on 15 March 2021. As mentioned above, the Commission’s records show that the First Application filed on 16 March 2021. The Second Application was filed on 31 March 2021.

[8] As the termination of the Agreement was agreed to on 28 February 2021, the 14 day period under s.222(3)(a) for the application to the FWC for approval of the termination began on Monday, 1 March 2021 and ended on Sunday, 14 March 2021 (inclusive). Section 36(2) of the Acts Interpretation Act 1901 (Cth) 3 provides that where the last day for making an application falls on a Sunday, it may be made on the next day that is not a Saturday, Sunday or public holiday. The 14 day period therefore ended on Monday, 15 March 2021.

[9] As mentioned above, iiNet submits that the First Application was filed on Monday, 15 March 2021 and that in accordance with s.36(2) of the Acts Interpretation Act 1901 (Cth), it should be deemed to have been made within the 14 day period because the 14 days ended on a Sunday (14 March). It further submits that although the incorrect forms were filed (the First Application), the Second Application was made promptly and that in substance, the Second Application can be considered to have been made within the statutory timeframe and that I should waive any irregularity in accordance with s.586 of the Act. iiNet submits that alternatively, I should extend the period for filing the correct application forms by exercising the discretion available to me under s.222(3)(b) of the Act.

[10] By the Commission’s records, the First Application was filed 1 day late (16 March 2021), and the Second Application was filed 16 days late (31 March 2021). However, in all the circumstances I am satisfied that it would be fair to extend the period within which the application for termination of the Agreement from 15 March 2021 to 31 March 2021. I therefore exercise the discretion available to me pursuant to s.222(3)(b) of the Act and extend the time period accordingly. From now on in this decision, the Second Application will be referred to as ‘the Application’.

Section 223

[11] I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.

Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)

[12] The employer must take all reasonable steps to notify the employees of the time and date of the vote and the method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).

[13] In the Form F24A Ms Spence stated the following steps were taken in respect of s.220(2)(a):

(i) By email on 1 February 2021, employees were advised that voting would commence on 15 February 2021 and that it would be conducted online;

(ii) Employees were provided with information about the online voting system and advised votes were confidential and anonymous;

(iii) Voting was to close on 18 February 2021 but was extended twice following feedback provided through the consultation process;

(iv) Email reminders about the vote were sent to employees and a link to the voting platform provided by email on 15 February 2021; and

(v) Employees were given the opportunity to ask questions about the voting process and no questions were asked and no feedback given.

[14] iiNet submits, and I am satisfied, the above steps satisfy the requirements of s.220(2)(a).

[15] In the Form F24A Ms Spence stated the following steps were taken in respect of s.220(2)(b):

(i) Consultation commenced with the employees covered by the Agreement on 1 February 2021, by email;

(ii) As part of that consultation process, the employees covered by the Agreement were given information about the proposal to terminate the Agreement which included briefing sessions that explained the terms and conditions that would apply to those employees should the Agreement be terminated; and

(iii) Email communications and a frequently asked questions document were circulated to employees.

[16] iiNet submits, and I am satisfied, the above steps satisfy the requirements of s.220(2)(b).

The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)

[17] The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

[18] In the Form F24A Ms Spence stated that voting commenced on 15 February 2021 and ended on 28 February 2021. 87 employees are covered by the Agreement, 75 employees cast a valid vote and 51 employees voted to approve the termination of the Agreement. The termination was agreed to on 28 February 2021.

[19] Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).

There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

[20] I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.

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 – s.223(d)

[21] As mentioned above, the Agreement is expressed to cover iiNet and its employees in the positions set out at clause 35 of the Agreement. 4 It does not cover any employee organisation.

Conclusion

[22] Based on the material contained in the declaration made by Ms Spence filed with the application, I am satisfied that iiNet has complied with the requirements in s.220(2) of the Act. The Application has been made in accordance with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.

[23] In the circumstances I consider it appropriate to approve the termination.

[24] The termination will operate from 15 April 2021.

[25] An order giving effect to this decision is separately issued in PR728655.

DEPUTY PRESIDENT

 1   AE887748 at clause 5.

 2   Ibid at clause 3.

 3   This Act as in force on 25 June 2009 applies to the Fair Work Act 2009 (see Fair Work Act s.40(A)).

 4   Ibid at clause 3.

Printed by authority of the Commonwealth Government Printer

<AE887748 PR728653>