National Pump & Energy Pty Ltd
[2022] FWCA 1629
•17 MAY 2022
| [2022] FWCA 1629 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
National Pump & Energy Pty Ltd
(AG2022/1227)
Pumps United Base Enterprise Agreement 2018
| Manufacturing and associated industries | |
| COMMISSIONER HUNT | BRISBANE, 17 MAY 2022 |
Application for termination of the Pumps United Base Enterprise Agreement 2018 - agreement terminated
Introduction
On 26 April 2022, National Pump & Energy Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Pumps United Base Enterprise Agreement 2018 (the Agreement).
The application was made using a Form F24 - application for termination of an enterprise agreement by agreement (F24) and was accompanied by a Form F24A – declaration in support of termination of an enterprise agreement (F24A) of Ms Odette Winnington, National Human Resources Manager of the Employer. The application has been made using the correct form and accompanying declaration, as required by Rule 26 of the Fair Work Commission Rules 2013.
The Employer stated at item 4.1 of the F24 that the vote to terminate the Agreement was finalised on 14 April 2022. The application has been made within the 14-day timeframe provided for in s.222(3)(a) of the Act, having been made 12 days after the vote to terminate the Agreement took place.
Legislative provisions
Section 219(1) of the Act relevantly provides:
“219 Employers and employees may agree to terminate an enterprise agreement
Termination by employers and employees
(1) The following may jointly agree to terminate an enterprise agreement:
(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or
(b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.
Note: For when a termination of an enterprise agreement is agreed to, see section 221.
[…]”
Clause 6.1 of the Agreement provides that the Agreement covers:
“Pumps United Pty Ltd and MDW Pump Rentals Queensland Pty Ltd (the Company)”
The Agreement covers the employees for whom classifications are provided in the Agreement.
At item 2.4 of the F24: “Are any of the employers identified […] covered by the agreement as the result of a transfer of business?” the Employer has stated:
“National Pump & Energy (NPE) [the Employer] acquired The Vortex Group of Companies on 17 August 2021. With this acquisition the Pumps United Base Enterprise Agreement 2018 was transferred to NPE for those employees that were employed under this agreement.”
On 5 May 2022, I requested further information from the Employer as to transfer of business and the identity of the current employer(s) of the employees who voted to terminate the Agreement. The Employer provided a letter from Mr David Campbell, Managing Director of the Employer who relevantly advised:
“Pumps United Pty Ltd and MDW Pump Rentals QLD Pty Ltd were former names of the Vortex Group of Companies which you will see attached evidence in the ASIC records. Both of these companies are still active but have no employees and there is no intention to do so in the future. Therefore, there is one employer, National Pump & Energy Pty Ltd that is currently covered by this agreement and we (National Pump & Energy), employ the ‘41’ employees that have voted on the termination of this agreement.
Vortex Group of Companies Pty Ltd (previously known as Pumps United Pty Ltd) and MDW Pump Rentals QLD Pty Ltd were acquired by National Pump & Energy Pty Ltd (see attached ASIC report). Vortex Group of Companies Pty Ltd and MDW Pump Rentals QLD Pty Ltd are 100% owned by National Pump & Energy Pty Ltd and the directors are substantially the same across all companies. As a Director of National Pump & Energy Pty Ltd, Vortex Group of Companies Pty Ltd (formerly Pumps United Pty Ltd) and MDW Pump Rentals QLD Pty Ltd, I hereby provide evidence that we would like to proceed to terminate the Pumps United Base Enterprise Agreement 2018 as per our application dated the 26 April 2022.”
As indicated above, the Employer provided current company details from the Australian Securities and Investments Commission which supported the above explanation. I am prepared to accept on the material before the Commission that the Employer is the ‘new employer’ within the meaning of s.311 the Act. There is nothing before me in the application to indicate that the Employer is not covered by the Agreement. There has been no order pursuant to s.318 of the Act made by the Commission that the Agreement will not cover the Employer.
I am therefore satisfied that the Employer is an employer covered by the Agreement, for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act and can therefore reach agreement with the employees covered by the Agreement pursuant to s.219(1) of the Act, and can make this application pursuant to s.222(1) of the Act.
Section 223 of the Act sets out the conditions which, if established, require the Commission to terminate the Agreement pursuant to s.222 of the Act. Section 223 provides 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
(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 evidence before the Commission is that the Agreement covers 41 employees who were notified of the time and place of the vote, that the vote would be taken by electronic ballot, and that of the 41 votes cast, 34 employees voted to terminate the Agreement.
If the Agreement is terminated, the employees currently covered by the Agreement will instead be covered by modern awards of the Commission.
For the purpose of s.223(d) of the Act, I note that there are no employee organisations covered by the Agreement whose views are required to be taken into account.
In consideration of the material before me, including the statutory declaration and the supporting material, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.
The Employer has not nominated a preferred date for the termination of the Agreement.
Having regard to s.227 of the Act, the termination will operate from the day of this decision, being 17 May 2022.
COMMISSIONER
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