Iron Mountain Australia Group Services Pty Ltd

[2024] FWCA 3740

[2024] FWCA 3740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Iron Mountain Australia Group Services Pty Ltd

(AG2024/4160)

IRON MOUNTAIN AUSTRALIA GROUP SERVICES PTY LTD GREYSTANES - ENTERPRISE AGREEMENT 2021

Storage services
COMMISSIONER CRAWFORD	SYDNEY, 28 OCTOBER 2024

Application for termination of the Iron Mountain Australia Group Services Pty Ltd Greystanes - Enterprise Agreement 2021

1. An application has been made by Iron Mountain Australia Group Services Pty Ltd (Applicant) for the termination of the Iron Mountain Services Australia Group Services Pty Ltd Greystanes - Enterprise Agreement 2021 (Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (FW Act). The application was initially made pursuant to s.225 of the FW Act. However, it was apparent from material filed in support of the application that the relevant employees had voted in favour of terminating the Agreement. I have subsequently approved the Applicant’s request to amend the application so that it is made pursuant to s.222 of the FW Act. The Agreement’s nominal expiry date is 20 June 2024.

1. Sections 222 and 223 of the FW Act set out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the FW Act:

“222 Application for FWC 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 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 FWC considers it fair to extend that period— within such further period as 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.”

1. Section 224 of the FW Act regulates the operative date of the termination and states: “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

1. The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission on 10 November 2021.[1] It was approved to operate from 17 November 2021 with a nominal expiry date of 20 June 2024. The Agreement was made directly with employees and no industrial organisation is covered by it.

1. The application was accompanied by a declaration completed by Raman Nagra (Human Resources Manager – Australia and New Zealand). Mr Nagra has provided documents to establish that the relevant employees were notified on 2 October 2024 that a vote regarding the termination of the Agreement would be held on 10 October 2024. Mr Nagra has provided documents to establish the reasons why employees were being asked to vote in relation to whether the Agreement should be terminated were explained to employees, and that the effect of the Agreement being terminated was explained to employees. Mr Nagra has included in the application a document that was given to employees which provides a comparison between the conditions in the Agreement and the conditions in the Storage Services and Wholesale Award 2020 and the Clerks Award 2020. I am satisfied that the process meets the requirements in s.220(2) and s.223(a) of the FW Act.

1. Mr Nagra has provided evidence that establishes an external voting provider was engaged to conduct an electronic ballot of employees. The external provider has declared that all 24 employees cast a valid vote and that 23 of those employees voted in favour of terminating the Agreement. I am satisfied that the termination was agreed in accordance with s.221(1) and s.223(b) of the FW Act.

1. I am satisfied that there are no other reasonable grounds for believing that the affected employees have not agreed to the termination in accordance with s.223(c) of the FW Act.

1. There are no employee organisations covered by the Agreement whose views or circumstances I can take into account. I am satisfied it is appropriate to approve the termination in accordance with s.223(d) of the FW Act.

Conclusion

1. Section 223 of the FW Act states that the Commission must approve a valid application for the termination of an agreement if all the requirements in ss.223(a) to (d) are met. For the reasons set out above, I have determined that I am satisfied that all these requirements have been met.

1. I approve the termination of the Agreement and specify that the termination will take effect on 28 October 2024.

COMMISSIONER

Determined on the papers.

[1] [2021] FWCA 6607.

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<AE513812  PR780662>