Logical Electrical Solutions Pty Ltd

[2023] FWCA 860

[2023] FWCA 860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Logical Electrical Solutions Pty Ltd

(AG2023/573)

LOGICAL ELECTRICAL SOLUTIONS PTY LTD SINGLE ENTERPRISE AGREEMENT 2021

Electrical contracting industry
COMMISSIONER WILSON	MELBOURNE, 27 MARCH 2023

Application for termination of the Logical Electrical Solutions Pty Ltd Single Enterprise Agreement 2021

1. On 9 March 2023, Logical Electrical Solutions Pty Ltd (the Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Logical Electrical Solutions Pty Ltd Single Enterprise Agreement 2021 (the Agreement). The Applicant is the employer covered by the Agreement.

1. The Agreement is a single enterprise agreement, and its nominal expiry date is 7 July 2024.

1. The relevant provisions of the Act are as follows:

“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.”

“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.”

1. On 21 March 2023, I caused correspondence to be sent to the Applicant to request an undertaking be provided that the contracts to be offered to employees will be on terms no less beneficial than the Agreement for at least the period to the Nominal Expiry Date. I also requested to be provided with a copy of the sample contract as circulated to the employees along with any other written explanatory material provided to employees prior to the vote.

1. On the same day, the Applicant responded providing an undertaking in the terms sought and supplied a copy of the sample contract and further particulars on the information given to employees prior to the vote.

1. On 22 March 2023, I caused further correspondence to be sent to the Applicant seeking amendments to the undertaking provided to correct grammatical errors. An amended undertaking was provided on the same day.

1. Based on the material contained in the declaration filed with the application, the additional material submitted, and the undertaking I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The undertaking is not attached to this decision however is retained on the Commission’s file.

1. The application has been made consistently with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination. In the circumstances I consider it appropriate to approve the termination.

1. Accordingly, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination will operate from 11.59PM on 3 April 2023.

1. An order giving effect to this decision is issued at the same time as this decision.

COMMISSIONER

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