Manildra Energy Australia Pty Ltd t/a Manildra Energy

[2020] FWCA 3070

[2020] FWCA 3070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Manildra Energy Australia Pty Ltd t/a Manildra Energy
(AG2020/1517)

MANILDRA GROUP OF COMPANIES AND AWU WEST MELBOURNE SITE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 12 JUNE 2020

Application for termination of the Manildra Group of Companies and AWU West Melbourne Site Agreement 2017.

[1] Manildra Energy (the Applicant) has applied to terminate its Manildra Group of Companies and AWU West Melbourne Site Agreement 2017 (the Agreement) under the Fair Work Act 2009 (Cth) (the Act).

[2] The Agreement is a single enterprise agreement and was approved by the Commission on 11 January 2018. It has a nominal expiry date of 30 June 2020.

[3] Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s.222 of the Act:

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.

[4] The application was supported by a Statutory Declaration made by Mr Roland Williams, Southern Division Manager of the Applicant, on 29 May 2020. Mr Williams declared, amongst other things, that all employees covered by the Agreement cast a valid vote in relation to whether the Agreement should be terminated and a 100% majority voted to terminate the Agreement. It was served on the Australian Workers’ Union (AWU), being an employee organisation covered by the Agreement.

[5] On 2 June 2020, I directed as follows:

1. The Applicant is to take steps to ensure service of the application in this matter and this correspondence on the employees covered by the Agreement (the Employees) and provide evidence of such to the Commission by 4pm Thursday 4 June 2020.

2. The Employees and the AWU (as an employee organisation covered by the Agreement), are invited to provide their views about the application (if any). In particular, any matter it considers the Commission should take into account in assessing the application pursuant to s.223 of the Act. Any views, submissions and/or evidence that an Employee and/or the AWU seeks to rely on are required to be filed by email to [email protected] by no later than 4pm on Friday 5 June 2020.  

3. The Applicant will be afforded the opportunity to respond with any further submissions and/or evidence by no later than 4pm on Monday 8 June 2020.

[6] On 3 June 2020, the Commission received further evidence of the Applicant, setting out the steps taken to comply with the directions of 2 June 2020. On 11 June 2020, the AWU advised my Associate that it does not oppose the application. No submissions or evidence were received on behalf of any of the affected employees in opposition to the application.

[7] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[8] Having regard to the materials before the Commission, including the statutory declaration of Mr Williams and the views of the AWU, I am satisfied that the requirements of s.223 of the Act have been met. Accordingly, I must approve the termination of the Agreement.

[9] In accordance with s.224 of the Act, the termination of the Agreement will come into effect at 12.01am on 19 June 2020. An order (PR720125) giving effect to this decision will issue today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE426915 PR720124>