Joyce Krane Australia Pty Ltd Trading AS Joyce Krane
[2025] FWCA 1189
•8 APRIL 2025
| [2025] FWCA 1189 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Joyce Krane Australia Pty Ltd Trading AS Joyce Krane
(AG2025/652)
| DEPUTY PRESIDENT BINET | PERTH, 8 APRIL 2025 |
Application for termination of the Joyce Krane Enterprise Agreement (NSW) 2023
On 12 March 2025 Joyce Krane Australia Pty Ltd trading as Joyce Krane (Joyce Krane) filed an application (Application) pursuant to section 222 of the Fair Work Act 2009 (Cth) (FWAct) for the termination of the Joyce Krane Enterprise Agreement (NSW) 2023 (Current Agreement).
The Application was supported by a Form F24A –declaration in support termination of an enterprise agreement by Mr James Joyce (Mr Joyce) dated 11 March 2025 (Joyce Declaration).
The parties to the Agreement are Joyce Krane and employees of Joyce Krane engaged to perform crane hire duties on sites in New South Wales (Employees).
There are no employee organisations covered by the Agreement.
On 18 March 2025, directions were issued to the Parties with respect to the Application (Directions). The Directions required Joyce Krane to file an outline of submissions in support of the Application and any evidence on which Joyce Krane sought to rely.
The Directions also required Joyce Krane to provide a copy of the Application, the Joyce Declaration and the Directions to all Employees. The Directions contained an invitation for any Employee who wished to be heard with respect to the Application, to contact the Fair Work Commission (FWC) by close of business on Wednesday 2 April 2023. The Directions advised that in the absence of any such contact being made, a conclusion about this Application may be reached on the material before me.
Evidence
Joyce Krane filed submissions in support of the Application including evidence as to the impact on the terms and conditions of the employment of the Employees of the proposed termination of the Current Agreement.
No employees contacted Chambers by close of business on Wednesday 2 April 2025 or since seeking to be heard in relation to the Application. Joyce Krane did not seek to be heard orally in relation to the Application. This Application has therefore been determined on the papers.
In reaching my decision, I have considered all the submissions made and the evidence tendered, even if not expressly referred to in these reasons for decision.
Background
Joyce Krane provides mobile crane hire services on sites in New South Wales.
The Current Agreement is a single enterprise agreement with a nominal expiry date of 12 February 2028.
It was approved by Commissioner Lim pursuant to s.185 of the FW Act on 12 February 2024 and commenced operation on 19 February 2024.
As at 11 March 2025, Joyce Krane had 7 employees covered by the Current Agreement.
On 20 February 2025 the FWC approved the Joyce Krane Enterprise Agreement (NSW) 2024 (New Agreement). The New Agreement covers the same Employees as the Current Agreement however it will not apply to the Employees until the Current Agreement reaches its nominal expiry date or is terminated.
Joyce Krane submits that the New Agreement provides greater benefits to the Employees and therefore it wishes to terminate the Current Agreement to allow the New Agreement to apply to the Employees.
On 28 February 2025 Joyce Krane explained in writing to employees the reasons and process for the proposed termination of the Current Agreement. Employees were provided with a comparison document comparing the differences between the Current Agreement and the New Agreement.
On 4 and 5 March 2025 Joyce Krane held consultation meetings with all the Employees again explaining the reasons and process for the proposed termination of the Current Agreement and answering any questions which were asked.
On 5 March 2025 Joyce Krane advised the Employees in writing of the time, place and method by which voting to terminate the Current Agreement would occur.
All employees covered by the Current Agreement voted in favour of the termination of the Current Agreement.
Relevant Statutory Provisions
Sections 220, 221, 222, 223 and 224 of the FW Act state:
“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.”
“s.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 of the FW Act provides that 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 in support of termination of the agreement.
Section 222 sets out three procedural requirements for an application under that section:
a. The application must be brought by a person covered by the agreement.
b.The application be accompanied by any declarations that are required by the procedural rules. Rule 26 of the Fair Work Commission Rules 2013 (Cth) requires that the application be accompanied by a Form F24A statutory declaration.
c. The application must be made within 14 days of the agreement to terminate.
Joyce Krane is a party to the Agreement and therefore has standing to make the Application. The Application was accompanied by the Joyce Declaration. The termination was agreed to on 7 March 2025. The Application was made on 11 March 2025.
Section 223 of the FW Act sets out four matters of which the FWC must be satisfied before a termination application brought under section 222 may be granted:
a.The FWC must be satisfied that each employer covered by the agreement has complied with subsection 220(2) of the FW Act.
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).
c.The FWC must be satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.
d.The FWC must be satisfied that it is appropriate to approve the termination taking into account the views of any employee organisation covered by the agreement.
Section 223(a) – reasonable opportunity to decide
Subsection 223(a) of the FW Act requires the FWC to be satisfied that Joyce Krane has complied with subsection 220(2) of the FW Act. Section 220(2) requires an employer to take a number of steps before requesting that employees approve a proposed termination of an enterprise agreement by voting for it.
Subsection 220(2)(a) requires that the employer take all reasonable steps to notify employees of the time and place at which the vote will occur, and the voting method that will be used. To this end, a high proportion of employees voting is strong evidence that the employer took all such reasonable steps.[1]
I am satisfied that Joyce Krane has complied with subsection 220(2)(a). An email was issued on 5 March 2025 which advised the Employees of the time and place at which the vote was to occur and the voting method used. All of the Employees participated in the ballot.
Subsection 220(2)(b) of the FW Act requires the employer to give the relevant employees a reasonable opportunity to decide whether they want to approve the proposed termination. The subsection does not otherwise prescribe any particular steps to be taken to give effect to a “reasonable opportunity”. An employer is not expressly required to explain the effects of the termination on the employees’ terms and conditions. However, the lack of any explanation or misleading or incorrect explanations may be relevant to the FWC’s assessment of whether there has been a “reasonable opportunity”.[2]
I am satisfied that Joyce Krane gave the relevant employees a reasonable opportunity to decide whether to terminate the Agreement in the sense contemplated by s 220(2). Employees were notified of the proposed termination process on 28 February 2025. Joyce Krane also explained to relevant employees the impact of the termination and effects on their conditions of employment in correspondence and meetings held on 4 and 5 March 2025.
The relevant employees voted on the proposed termination on 7 March 2025. They had a sufficient period in which to consider whether to agree to the proposed termination, during which time they had the opportunity to put further questions to Joyce Krane and to seek advice. All of the Employees participated in the ballot and all voted in favour of the termination. These factors all point toward a reasonable opportunity having been granted.[3]
Section 223(b) – agreement by employees
Section 223(b) of the FW Act relevantly requires the FWC to be satisfied that the termination was agreed to in accordance with subsection 221(1). Under section 221(1), the termination of a single enterprise agreement is agreed when a majority of employees who cast a valid vote approve the termination.
A total 7 employees were covered by the Agreement and employed at the time of the request to vote to terminate the Agreement. Of the seven, all voted in favour of terminating the Agreement.
Section 223(c) – no other reasonable grounds
Section 223(c) requires the FWC to be satisfied that there are no other reasonable grounds for believing that the termination was not agreed by the majority of Employees.
The FWC cannot be satisfied of that negative proposition (“no other reasonable grounds”) without considering whether there are “reasonable grounds” for believing so. In the absence of finding “reasonable grounds” for believing so, the FWC will inevitably be satisfied that there are “no other reasonable grounds”.[4]
All Employees who cast a valid vote, voted in favour of terminating the Agreement. They did so after being provided with:
a.a detailed explanation of the process for and consequences of the termination of the Agreement;
b. an opportunity to ask questions;
c. a period of time to consider their decision.
Employees were notified of the opportunity to seek to be heard in relation to the Application and choose not to do so.
In those circumstances, I am satisfied that there are no other grounds – reasonable or otherwise – for believing that the Employees have not agreed to the termination of the Agreement.
Section 223(d) – appropriate to approve termination
Subsection 223(d) requires the FWC to consider it appropriate to approve the termination taking into account the views of any employee organisation(s) covered by the agreement. There are no employee organisations covered by the Agreement.
Section 224 – date of operation of any decision to terminate
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. Joyce Krane submits that any decision to approve the termination of the Agreement should come into effect on the date of the decision to approve the termination of the Agreement.
Conclusion
Based on the material that is before me, and in the absence of any request from an Employee to be heard, I am satisfied that Joyce Krane has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the Employees have not agreed to the termination. In these circumstances, I must approve the termination of the Agreement.
The termination will come into effect on the date of this decision. An order to this effect will be issued with this Decision.[5]
DEPUTY PRESIDENT
[1] Re Application by Carl Zeiss Vision Australia Holdings Limited [2017] FWCA 5825 at [37].
[2] Re Application by Barminco Ltd [2015] FWCA 219 at [20]. See also Re Application by Advanced Plumbing and Drains Pty Ltd T/as Advance Plumbing and Drains [2015] FWCA 8740 at [26] and Re Application by Carl Zeiss Vision Australia Holdings Limited [2017] FWCA 5825 at [40].
[3] See Advanced Plumbing and Drains Pty Ltd [2015] FWCA 8740 at [32].
[4] CFMEU v CSRP Pty Ltd [2017] FWCFB 2101 at [27] (Hatcher VP, Gostencnik DP, Bissett C).
[5] PR785951.
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