James Smith

[2015] FWCA 956

[2015] FWCA 956

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

James Smith
(AG2014/10909)

LIEBHERR-AUSTRALIA PTY LTD (SYDNEY) CERTIFIED AGREEMENT 2005 EXTENDED

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O’CALLAGHAN	ADELAIDE, 9 FEBRUARY 2015

Application for termination of the Liebherr-Australia Pty Ltd (Sydney) Certified Agreement 2005.

[1] An application has been made pursuant to Item 15, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the Liebherr-Australia Pty Ltd (Sydney) Certified Agreement 2005 (the Agreement). The nominal expiry date of the Agreement was 23 December 2011.

[2] I must approve the termination if I am satisfied that each of the requirements of Section 223 of the Fair Work Act 2009 (the Act) are met. Section 223 provides as follows:

“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.”

[3] The application states that the termination of the Agreement was agreed to on 15 December 2014. Pursuant to Section 223(3)(a) the application was made within 14 days after the termination was agreed to.

[4] A statutory declaration of Mr James Smith, HR Advisor of Liebherr-Australia Pty Ltd was provided with the application. Mr Smith’s declaration states that each employee covered by the Agreement was provided with notice that the Company intended holding a ballot on whether or not to terminate the Agreement. The ballot was to be conducted on Monday 15 December by way of email.

[5] The statutory declaration further advised that the ballot was conducted on 15 December 2014 and the majority of employees participated with a result of 3-0 in favour of terminating the Agreement. Two employees abstained from voting.

[6] On 5 January 2015 I sent Directions to the employer requesting the application and Directions be made available to all employees covered by the agreement by Monday 12 January 2015. I invited any employee wanting to be heard in this respect to provide a written statement to the Fair Work Commission by Monday 2 February 2015.

[7] As there was no opposition to the application, I have determined this matter on the material before me and I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met.

[8] I approve the termination of the Agreement. Pursuant to s.224 of the Act the termination of the Agreement will operate from 9 February 2015.

Printed by authority of the Commonwealth Government Printer

<Price code A, AG842797  PR560880>