Mundaring Community Financial Services Limited
[2023] FWCA 239
•2 FEBRUARY 2023
| [2023] FWCA 239 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Mundaring Community Financial Services Limited
(AG2023/117)
MUNDARING COMMUNITY FINANCIAL SERVICES LTD ENTERPRISE AGREEMENT
| Banking finance and insurance industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 2 FEBRUARY 2023 |
Application for termination of the Mundaring Community Financial Services Ltd Enterprise Agreement
On 21 January 2023, Mundaring Community Financial Services Limited (the Applicant) applied for the termination of the Mundaring Community Financial Services Ltd Enterprise Agreement (the Agreement)[1] under s 222 of the Fair Work Act 2009 (Cth) (the Act).
Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s 222 of the Act. Section 223 of the Act is as follows:
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
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.
In support of its application, the Applicant provided a declaration from Ms Nicola Smith, the Acting Chairperson – Mundaring Community Financial Services Ltd.
The Ms Smith explained that the Agreement had a nominal expiry date of 27 June 2015 and there were eight employees covered by the Agreement. On 11 May 2022, a briefing session was held to provide employees with information regarding the Applicant’s proposal to terminate the Agreement.[2]
Ms Smith gave evidence that at the briefing session the following topics were covered:
a) the proposal to terminate the Agreement and its reasons;
b) merits of returning to the Banking, Finance and Insurance Industry Award 2020 (the Award)[3];
c) that above Award rates and conditions would be protected; and
d) overview of the process for terminating the Agreement.
At the conclusion of the briefing session on 11 May 2022, the employees were said to have been provided with the document referred to as the ‘BB_Mundaring_EA Termination_FAQ_TEAM version_20220503_V3’ (the FAQ).[4] The FAQ outlined a summary of topics discussed in the 11 May 2022 session, including:
a)confirmation of above Award entitlements to be protected;
b)invitation to raise views or questions; and
c)links to the Award and the Agreement were provided.
Ms Smith said that during the period of 11 May 2022 to June 2022, employees were invited to put forward any views or ask questions in the weeks after the briefing session.
Ms Smith noted that on 13 September 2022, draft contracts were issued to employees that confirmed the beneficial entitlements under the Agreement that the Applicant would carry over if the Agreement was terminated. Those benefits included advantageous redundancy pay, paid parental leave, bereavement leave, paid jury leave and a laundry allowance. Also included in the draft contracts was the Applicant’s commitment to provide an additional two days of personal/carer’s leave per year, payment of unused personal/carer’s leave on termination, funeral days and paid domestic violence leave.
On 13 December 2022, employees were notified of the time, place and method of the vote and thereafter the vote took place in the period of 16 December 2022 to 21 December 2022.[5] Of the six employees who voted, all voted in favour of terminating the Agreement.
Consideration
The application was not made in the requisite timeframe.[6] The Applicant submitted that its main point of contact was admitted to hospital and required a period in which to recover. The consultant engaged to assist the Applicant with the process to terminate the Agreement also took leave during this period. Notwithstanding a reminder from the consultant to the Applicant to lodge the paperwork within the statutory period, this did not occur. The Applicant further submitted that the delay in making the application was due to a series of events occurring over a holiday period and as it was, an extension of time in which to make the application would not negatively impact the relevant employees or the Applicant. I have no reason to doubt the legitimacy of the Applicant’s request for an extension of time and in the circumstances, I consider it fair to extend the period to 21 January 2023 under to s 222(3)(b) of the Act.
The application was supported by a declaration (Form F24A) from the Applicant which was accompanied by comprehensive evidence. The declaration set out, among other things, that the employees covered by the Agreement were informed of the effect of the termination, were provided with reasonable time to consider termination of the Agreement and cast valid votes in the form of electronic votes to approve the termination of the Agreement.
It is observed that no employee organisations are covered by the Agreement.
Having considered the material before me, including the application and Ms Smith’s declaration, I am satisfied that the requirements of s 223 of the Act have been met. Therefore, in accordance with s 223, I must terminate the Agreement.
Conclusion
Accordingly, the Agreement is terminated and pursuant to s 224 of the Act, the termination will take effect from the date of this decision. An Order[7] to this effect issues concurrently with this decision.
DEPUTY PRESIDENT
[1] AE894879.
[2] Form F24A – declaration in support of termination of an enterprise agreement [2.1] (Form F24A).
[3] MA000019.
[4] Form F24A (n 2) [2.1].
[5] Ibid [2.2]–[2.3].
[6] Fair Work Act 2009 (Cth) s 222(3).
[7] PR749918.
Printed by authority of the Commonwealth Government Printer
<AE894879 PR749917>
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