Ixom Operations Pty Ltd

[2016] FWCA 7568

[2016] FWCA 7568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Ixom Operations Pty Ltd
(AG2016/5825)

ORICA AUSTRALIA PTY LTD HEYBRIDGE ENTERPRISE AGREEMENT 2014

Tasmania
COMMISSIONER CIRKOVIC	MELBOURNE, 21 OCTOBER 2016

Application for termination of the Orica Australia Pty Ltd Heybridge Enterprise Agreement 2014.

[1] On 19 September 2016, Ixom Operations Pty Ltd (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.222 of the Fair Work Act 2009 (Act) for the termination of the Orica Australia Pty Ltd Heybridge Enterprise Agreement 2014 (Agreement).

[2] The Agreement came into operation on the seventh day after 1 July 2014 with a nominal expiry date of 30 September 2016.

Legislation

[3] The relevant provisions of the Act are 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.”

[4] The application was supported by a Statutory Declaration of Natalie Moore, the Human Resources Business Partner of the Applicant, declared 20 September 2016. Ms Moore declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

• An initial consultation meeting was head with the relevant employees on 23 August 2016 to discuss the proposal to formally terminate the agreement;



• On 26 and 29 August 2016 the employees received a letter explaining the proposal and informing them of the ballot vote;



• The employees were given 7 to 10 calendar days to decide whether they wanted to approve the termination of the agreement;



• Subsequently a vote was held on 6 September 2016.

[5] Ms Moore declared that three out of three employees covered by the Agreement voted on its termination and all three voted in favour.

[6] The Transport Workers’ Union of Australia (TWU) and United Voice (UV) are employee organisations which are covered by the Agreement.

[7] On 22 September 2016, my chambers wrote to the TWU and UV by email to determine whether they objected to the Applicant’s application to terminate the Agreement. On 26 September 2016, the TWU and UV advised the Commission by email that they did not object to the Applicant’s application to terminate the Agreement.

Conclusion

[8] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, I am satisfied that the Applicant complied with s.220(2) of the Act in relation to the termination of the Agreement. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[9] An Order 1 will be issued terminating the Agreement with effect from 21 October 2016.

COMMISSIONER

 1   PR586659

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<Price code A, AE408888  PR586641>