Madec Australia T/A Madec
[2025] FWCA 690
•21 FEBRUARY 2025
| [2025] FWCA 690 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Madec Australia T/A Madec
(AG2025/314)
UNKNOWN
| Social, community, home care and disability services | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 21 FEBRUARY 2025 |
Application for termination of the MADEC Australia (MADEC) Single Enterprise Agreement 2021 - 2024
On 11 February 2025, MADEC Australia T/A MADEC (MADEC) filed an application (Application) for termination of the MADEC Australia (MADEC) Single Enterprise Agreement 2021-2024 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement which nominally expired on 6 January 2025.[1] The Agreement is expressed to cover MADEC and all employees who are covered by the classifications set out in Schedule 2 of the Agreement.[2]
The Application was accompanied by a Form F24A – Declaration in support of termination of an enterprise agreement (Form F24A) made by Jaimie Chick, Human Resources Manager.
Legislation
The Act relevantly provides 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.”
Consideration
Section 222
I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by MADEC, a person covered by the Agreement. Further, it was accompanied by the material required by the Fair Work Commission Rules 2013, being made by Form F24 and accompanied by a Form F24A declaration setting out the basis upon which the FWC can be satisfied that the requirements of s.223 of the Act have been met.
Section 222(3) sets out the timeframe within which an application must be made. In its Form F24 MADEC stated the termination was agreed to on 5 February 2025, the Application was lodged on 11 February 2025, which is within the 14 day timeframe stipulated in s.222(3)(a) of the Act.
Section 223
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.
Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)
The employer must take all reasonable steps to notify the employees of the time and place of the vote, the voting method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).
In the Form F24A, Jaimie Chick declared the following steps were taken in respect of s.220(2)(a):
a)On 9 January 2025, the date of the vote was communicated via email and “Teams”.
b)On 20, 21, and 22 January 2025, the time, place and method of vote was communicated via consultation sessions.
c)On 23 January 2025, the time, place and method of vote was communicated via summary document following the consultation sessions via email and “Teams”.
d)On 24 January 2025, the place and method of vote was communicated via email and “Teams”.
e)On 30 January 2025, voting opened.
I am satisfied the abovementioned steps comply with the requirements of s.220(2)(a).
In the Form F24A, Jaimie Chick declared the following steps were taken in respect of s.220(2)(b):
a)On 9 January 2025, an email communication was sent outlining the intention to terminate the Agreement and an overview of the process, the mechanism for feedback/consultation and the date of the vote. This communication also outlined that questions/feedback could be sent by email to Jaimie Chick at any time leading up to the vote. A dedicated “Teams” channel to upload all relevant information was also established.
b)Consultation sessions were held on “Teams” on each of 20, 21 and 22 January 2025.
c)On 23 January 2025, a summary document reporting on the consultation sessions was sent via “Teams” and email. This addressed the information covered, voting information, and questions and answers raised by employees.
d)Further voting information was sent via email and in “Teams” on 24 January 2025.
I am satisfied the abovementioned steps comply the requirements of s.220(2)(b).
The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)
The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
In the Form F24A, Jaimie Chick declared that voting commenced on 30 January 2025 and ended on 5 February 2025, that 140 employees are covered by the Agreement, that 95 employees cast a valid vote and that 74 employees voted to approve the termination of the Agreement. As such, the termination was agreed to on 5 February 2025.
Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).
There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.
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 – s.223(d)
As the Agreement does not cover any employee organisation, there are no views of an employee organisation to take into account pursuant to s.223(d).
As to whether I consider it appropriate to approve the termination, I am satisfied, based on the material contained in the declaration made by Jaimie Chick, that MADEC has complied with the requirements in s.220(2) of the Act. I also observe the Application has been made in accordance with the requirements in s.222. Further, 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). Finally, I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.
In all the circumstances, I consider it is appropriate to approve the termination.
Conclusion
I have approved the termination of the Agreement and in accordance s.224 of the Act, I determine that the termination will operate from 20 February 2025.
An order giving effect to this decision is separately issued in PR784640
DEPUTY PRESIDENT
[1] PR737329 at paragraph [6].
[2] MADEC Australia (MADEC) Single Enterprise Agreement 2021-2024 at clause 1.3.
Printed by authority of the Commonwealth Government Printer
<AE514542 PR784639>
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