JW Cross Maintenance Pty Ltd

[2016] FWCA 3441

[2016] FWCA 3441

FAIR WORK COMMISSION

DECISION

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

JW Cross Maintenance Pty Ltd
(AG2016/3071)

J.W CROSS MAINTENANCE PTY LTD BHP BILLITON WORSLEY ALUMINA MAINTENANCE AND MINOR WORKS AGREEMENT 2012 - 2013

Aluminium industry
DEPUTY PRESIDENT BINET	PERTH, 21 JUNE 2016

Application for termination of the J.W Cross Maintenance Pty Ltd BHP Billiton Worsley Alumina Maintenance and Minor Works Agreement 2012 - 2013.

[1] On 2 May 2016, JW Cross Maintenance Pty Ltd (JW Cross Maintenance) filed an application (Application) pursuant to s.222 of the Fair Work Act 2009 (FW Act) to terminate the J.W Cross Maintenance Pty Ltd BHP Billiton Worsley Alumina Maintenance and Minor Works Agreement 2012 - 2013 (Agreement).

[2] The Agreement is a single enterprise agreement with a nominal expiry date of 1 October 2013.

[3] There are no employee organisations covered by the Agreement.

[4] Section 223 of the FW Act sets out the conditions which must be met for an agreement to be terminated by the Fair Work Commission (FWC) pursuant to s.222 of the FW Act:

“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.”

[5] Voting in relation to termination of the Agreement concluded on 29 April 2016 and the Application was lodged on 2 May 2016, within the 14 day period imposed by section 222(3) of the FW Act.

[6] On 12 May 2016, JW Cross Maintenance were directed to provide a copy of the Application, the Procter Statutory Declaration and the Directions to all employees whose terms of employment are regulated by the Agreement (Directions). The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the FWC by close of business on Thursday 2 June 2016.

[7] On 20 May 2016 Mr Dion House of JW Cross Maintenance filed a statutory declaration confirming that a copy of the Application, Procter Statutory Declaration, Directions and the Agreement had been provided to all employees currently covered by the Agreement.

[8] No applications to be heard were received by any employees of JW Cross Maintenance on or before close of business on Thursday 2 June 2016.

[9] Mr Murray Procter, Operator at JW Cross Maintenance, provided a statutory declaration confirming that JW Cross Maintenance has complied with its obligations under subsection 220(2) and that a valid vote in support of the termination of the Agreement was cast by three of the 26 employees who are covered by the Agreement (Procter Statutory Declaration).

[10] On 7 June 2016, JW Cross Maintenance was requested to provide brief submissions to my Chambers explaining the low number of valid votes for termination of the Agreement. Following receipt of these submissions on 7 June 2016, a further telephone conference (Telephone Conference) was held with JW Cross Maintenance on 13 June 2016 to give it an opportunity to explain the low number of votes and to enable me to outline its obligations in respect of which employees are required to vote in accordance with the legislation.

[11] At the Telephone Conference, I directed JW Cross Maintenance to conduct a further ballot of all current employees covered by the Agreement and employed by JW Cross Maintenance at the time of the vote, and to lodge a new Application and Statutory Declaration on the appropriate application and statutory declaration forms outlining the result of the ballot.

[12] On 20 June 2016, JW Cross Maintenance lodged a new Application and Statutory Declaration which declared that voting in relation to termination of the Agreement was conducted on 20 June 2016. 13 employees out of a possible 13 employees cast a valid vote in relation to termination of the Agreement and all voted in favour of its termination.

[13] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that JW Cross Maintenance 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. I therefore must approve the termination of the Agreement.

[14] The termination will come into effect on the date of this decision.

DEPUTY PRESIDENT

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