MMC Electrical Engineering T/A EJ Electrical Engineering Contractors
[2018] FWCA 7164
•13 DECEMBER 2018
| [2018] FWCA 7164 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.222—Enterprise agreement
MMC Electrical Engineering T/A EJ Electrical Engineering Contractors
(AG2018/5588)
EJ Electrical Engineering Contractors (Marine and Offshore Work) Enterprise Agreement 2014 – 2018
| Electrical contracting industry | |
| Deputy President Binet | PERTH, 13 DECEMBER 2018 |
Application for termination of the EJ Electrical Engineering Contractors (Marine and Offshore Work) Enterprise Agreement 2014–2018 – application granted.
On 4 October 2018 MMC Electrical Engineering Pty Ltd trading as EJ Electrical Engineering Contractors (EJ Electrical) filed an application (Application) pursuant to section 222 of the Fair Work Act 2009 (Cth) (FW Act) for the termination of the EJ Electrical Engineering Contractors (Marine and Offshore Work) Enterprise Agreement 2014–2018 (Agreement).
The Agreement is a single enterprise agreement with a nominal expiry date 26 November 2018. An application to approve a variation to the Agreement pursuant to section 210 of the FW Act was granted on 12 May 2015.
There are no employee organisations covered by the Agreement.
Relevant Statutory Provisions
Sections 220, 221, 222 and 223 of the FW Act state:
“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
(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.”
The Application was supported by a statutory declaration by Mr Fadi Dorkhom (Dorkhom Declaration).
On 2 November 2018, directions were issued to EJ Electrical (Directions) requiring them to provide a copy of the Application, the Dorkhom Declaration and the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the FWC by close of business on Thursday, 15 November 2018. The parties were advised that in the absence of any such contact being made, a conclusion about this Application may be reached on the material before me.
Consideration
On 8 November 2018, Mr Dorkhom filed a statutory declaration confirming that a copy of the Application, the Dorkhom Declaration, submissions filed by EJ Electrical in support of the Application, and the Directions had been provided to all employees whose terms of employment are covered by the Agreement.
No applications to be heard were received by any employees of EJ Electrical on or before close of business on Thursday, 15 November 2018.
On 7 November 2018, EJ’s Electrical’s representative, NECA Legal (WA) Pty Ltd, filed an outline of submissions (Submissions) in support of the application, noting that sections 220, 221, 222 and 223 of the FW Act were relevant to determining the application.
Section 220
EJ Electrical submit that s.220(2)(a) of the FW Act has been complied with because the six employees covered by the Agreement were issued with a letter on 20 September 2018 notifying them that the vote would take place at 2:30pm on 3 October 2018, and that the voting method to be used would either be a show of hands, or electronically by email. EJ Electrical further submit that in the week leading up to the vote, the employees were verbally advised of the time and place of the vote, and the voting method.
EJ Electrical submit that s.220(2)(b) of the FW Act has been complied with because EJ Electrical (represented by Mr Dorkhom and Mr Matt Cready) held individual discussions with all six employees to explain in more detail why EJ Electrical had applied for the Agreement to be terminated. During these discussions, EJ Electrical explained that the reason for the Applicant included the inflexibility of terms of the Agreement and the narrow spectrum of rates within the Agreement (which do not account for individual skill levels, qualifications and experience level of employees).
The Submissions state that these individual discussions took place at EJ Electrical’s premises and that each of the employees understood the reasons for the Application and had sufficient time to consider whether they wished to lend their support to the Application.
The Submissions further state the employees were provided with further verbal explanation regarding the Application on the day of the vote (which lasted in excess of one hour) and where all questions raised by the employees were answered. On the basis that employees were given written reasons for the Application 13 days prior to the date of the vote, that they were given verbal explanation during individual discussions and in a group discussion on the day of the vote, EJ Electrical submit the requirements in section 220 have been complied with.
Section 221
EJ Electrical submits that the termination of the Agreement has been agreed to pursuant to section 221(1), as of the six employees eligible to cast a vote, four voted in favour of terminating the Agreement. A summary of the voting outcomes was attached to the Submissions.
Section 222
The Submissions note that EJ Electrical is a party to the Agreement and the Application was made within 14 days of the vote, and that section 222 has therefore been complied with.
Section 223
EJ Electrical submit that there is no reasonable ground made out as to any contravention of the objects of the FW Act or any departure from good faith bargaining requirements, and that there are no other reasonable grounds for believing the employees have not agreed to the termination of the Agreement. On this basis, EJ Electrical submit that the FWC ought to approve the termination of the Agreement in accordance with section 223 of the FW Act.
Conclusion
Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that EJ Electrical has standing to make the application, that EJ Electrical has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the employees have not agreed to the termination. I therefore must approve the termination of the Agreement.
The termination will come into effect on the date of this decision.
DEPUTY PRESIDENT
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