Liebherr-Australia Pty Ltd

[2015] FWC 7066

[2015] FWC 7066

FAIR WORK COMMISSION

DECISION

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

Liebherr-Australia Pty Ltd
(AG2015/5363)

Manufacturing and associated industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 13 OCTOBER 2015

Application for termination of the Liebherr-Australia Pty Ltd NSW Operations Enterprise Agreement 2012.

[1] On 1 September 2015 Liebherr-Australia Pty Ltd (Liebherr) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Liebherr-Australia Pty Ltd NSW Operations Enterprise Agreement 2012 (the Agreement).

[2] The nominal expiry date of the Agreement is 16 October 2015 and the application seeks that the termination operates from that date.

[3] The application attached a statutory declaration by Lee West, Liebherr’s New South Wales Mining Manager. It details the process of consultation with employees during August 2015 about the proposal to terminate the Agreement and revert to the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] (the Award) plus over-award payments and conditions. This culminated in a ballot of employees which concluded on 31 August 2015. Of the 19 employees covered by the Agreement, 16 cast a valid vote and 12 voted to terminate the Agreement.

[4] The relevant sections of the Act are:

“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

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.”

[5] The matter was listed for hearing by telephone on 17 September. Directions were issued that Mr Lee West attend so questions could be asked about his statutory declaration. I also directed that some employees participate as representatives of the employees in the absence of a union. Liebherr were also directed to provide a comparison of the wages and conditions for employees under the Agreement as compared to the Award. This was done satisfactorily.

[6] At the hearing, Lee West provided support for the matters contained in his statutory declaration. Liebherr also gave undertakings to preserve some over-award wages and conditions.

[7] Four employee representatives participated in the hearing and supported the submission made by Liebherr. They confirmed that employees had a reasonable opportunity to decide and had agreed to the termination.

[8] On the material before me I am satisfied that the requirements of the Act have been met in respect of consultation with employees as required by s.220 and the ballot of employees as required by s.221(1). Therefore, pursuant to s.223 of the Act I must approve the termination of the Agreement.

[9] The application to terminate the Agreement is approved. The termination will come into effect from 16 October 2015.

DEPUTY PRESIDENT

Appearances:

J. Smith with L. West and R. Payne for Liebherr-Australia Pty Ltd.

Hearing details:

2015

By Telephone:

September 17.

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<Price code A, PR572886 >