Lynnhurst Pty Ltd T/A Arthur Contracting

[2019] FWCA 8207

[2019] FWCA 8207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Lynnhurst Pty Ltd T/A Arthur Contracting
(AG2019/3918)

LYNNHURST PTY LTD TRADING AS ARTHUR CONTRACTING ENTERPRISE AGREEMENT 2018-2020

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 3 DECEMBER 2019

Application for termination of the Lynnhurst Pty Ltd Trading as Arthur Contracting Enterprise Agreement 2018-2020.

[1] On 14 October 2019, Lynnhurst Pty Ltd T/A Arthur Contracting (Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Lynnhurst Pty Ltd Trading as Arthur Contracting Enterprise Agreement 2018-2020 1 (Agreement). The Applicant is the employer covered by the Agreement.

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 30 June 2020. 2

[3] The Agreement is expressed to cover the employer and its employees who perform work in the state of Victoria in the electrical distribution and transmission industry and who are engaged in the classifications set out in clause 26 of the Agreement. 3

Background

[1] The application was accompanied with a Form F24C – Statutory Declaration (Form F24C) made by Mr David Biggs, the General Manager. In its Form F24C, the Applicant states that it currently employs 10 employees covered by the Agreement of which seven cast a valid vote and all seven voted in favour of terminating the Agreement.

[2] On 14 October 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) advised the Commission that they consent to the termination of the Agreement.

[3] On 29 October 2019, I sought further submissions from the Applicant which explained in greater detail how the vote was conducted and the content of any discussions that occurred with employees relating to the vote as well as the termination of the Agreement. The Applicant submits that on 5 July 2019, a meeting was held with all employees and attended by a union official. The union official presented employees with a comparison of the Agreement against the proposed new replacement enterprise agreement. The differences between the Agreements were discussed in detail. In terms of the vote, the Applicant submits that employees were emailed on 9 September 2019 that the vote to terminate the Agreement would be conducted on 30 September 2019 as well as information regarding how and where the vote would be conducted. A further meeting was held between employees and the CEPU on 11 September 2019 to address any final questions or confusion employees’ may have had. The Applicant submits no employees indicated they were confused or misunderstood the terms of the replacement enterprise agreement.

Legislation

[4] 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.” 4

Consideration

[5] As the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.222(1) of the Act.

[6] Based on the material contained in the Applicant’s declaration and the views of the CEPU, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.221(1), a valid majority of the relevant employees covered by the Agreement agreed to vote to approve the termination.

[7] I note that the corresponding application for approval of the replacement enterprise agreement was lodged with the Commission on 14 October 2019. The parties requested that in the event the applications are approved, the termination application and approval applications operate at the same time. This decision is made in consideration of the approval application.

[8] The termination will operate from 10 December 2019. An order giving effect to this decision will be issued separately.

COMMISSIONER

 1   AE429486.

 2   Ibid at clause 4.

 3   Ibid at clauses 1-2.

 4   Fair Work Act 2009 (Cth) ss.222-224.

Printed by authority of the Commonwealth Government Printer

<AE429486  PR714832>