KTB Roofing Solutions Pty Ltd T/A KTB Roofing Solutions v Unknown

[2023] FWC 842

[2023] FWC 842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

KTB Roofing Solutions Pty Ltd T/A KTB Roofing Solutions
v

Unknown

(AG2022/4835)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 APRIL 2023

Application for termination of the KTB Roofing Solutions Pty Ltd Enterprise Agreement 2019

1. On 21 November 2022, KTB Roofing Solutions Pty Ltd (KTB) filed an application (Application) for termination of the KTB Roofing Solutions Pty Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act). The Application was accompanied by a Form F24A – Declaration in support of termination of an enterprise agreement (Form F24A) made by Jamie Wickham.

1. KTB is a plumbing and roofing contractor based in Victoria. Mr Wickham is a Director of KTB. The Form F24A provided that on 24 October 2022 a meeting of all employees took place during which management informed the employees that KTB wanted to enter into a new agreement with the CEPU Plumbing Division, all employees were given a copy of the Agreement and the new agreement and the differences between the two agreements were explained. Notification that a show of hands vote would take place on 3 November 2022 was also given. The employees were informed by management and the CEPU that they would continue to receive all entitlements under the Agreement until such time as the new agreement was voted on and ‘certified’, with KTB willing to provide an undertaking to this effect.

1. On 3 November 2022 voting on the termination of the Agreement took place. Thirteen employees were said to be covered by the Agreement and it was reported that all thirteen cast a valid vote approving termination.

1. On 28 November 2022, following a Mention and Directions issued by then Deputy President Young, KTB was directed to provide:

·   An affidavit setting out a detailed description of the steps taken, information provided to employees and process leading up to the vote for termination of the current agreement; and

·   A document comparing the terms and conditions of the existing agreement and the proposed agreement and a copy of the proposed agreement which was provided to employees; and

·   A revised undertaking providing that the employer would comply with all terms and conditions of the Agreement (by name) until it is replaced with a new agreement approved by the Fair Work Commission.

1. The matter was allocated to me on 20 December 2022. As this point KTB had not provided the affidavit or requested documents. My Chambers issued correspondence to KTB requesting these documents be filed by no later than 23 January 2023 and a guide to undertakings and templates were provided for their reference. On 8 February 2023, having not received the requested documents or any communication from KTB, my Chambers sent a further email requesting that the documents be filed by no later than 9 February 2023.

1. To date the Commission has received no further communication from KTB. It is unclear why this is the case.

1. Section 223 of the Act provides that if an application for the approval of a termination of an enterprise agreement is made under s.222 of the Act and a number of preconditions are met (ss.223(a) – (c)), the Commission must approve the termination if it considers that it is appropriate to do so (s.223(d)). Apart from having filed the Application outside the requisite 14-day time period in s.222(3) of the Act, KTB has failed to either engage with the Commission or provide the requested documents and undertaking. As such, I am not satisfied that it is appropriate to approve the termination. The Application is therefore dismissed.

1. I otherwise observe that the Agreement reached its nominal expiry date on 20 February 2023. If KTB negotiates a new enterprise agreement with the CEPU Plumbing Division, as has been foreshadowed, they can lodge an application for approval once the new enterprise agreement has been made. When any new enterprise agreement is approved by the Commission and commences operation, the Agreement will cease to apply to the KTB employees.

DEPUTY PRESIDENT

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