Newcastle Permanent Building Society Ltd t/as Newcastle Permanent

[2015] FWC 6398

[2015] FWC 6398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 222 - Application for approval of a termination of an enterprise agreement

Newcastle Permanent Building Society Ltd t/as Newcastle Permanent
(AG2015/4840)

NEWCASTLE PERMANENT BUILDING SOCIETY ENTERPRISE AGREEMENT 2012

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 SEPTEMBER 2015

Application for termination of the Newcastle Permanent Building Society Enterprise Agreement 2012.

[1] This is an application, filed by Newcastle Permanent Building Society Ltd t/as Newcastle Permanent (the ‘applicant’), pursuant to s 222 of the Fair Work Act 2009 (the ‘Act’) to terminate the Newcastle Permanent Building Society Enterprise Agreement 2015 [AE897178] (the ‘old Agreement’). Relevantly, the old Agreement passes its nominal expiry date on 28 September 2015. I note that this application was accompanied by an application for approval of a new enterprise agreement, being the Newcastle Permanent Building Society Enterprise Agreement 2015 (the ‘new Agreement’)

[2] The relevant provisions of the Act governing this application are set out at ss 220-224 as follows:

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.


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.

[3] The matter was listed for hearing with the application for approval of the new Agreement on 9 September 2015. Mr M Adams, Mr D Kett and Ms F Laczina appeared for the applicant and Mr P Sansom appeared for the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the ‘Union’). Mr Adams conceded that, as there had been no vote for approval of the termination of the old Agreement, the Commission could not be satisfied that the relevant employees had agreed to terminate the old Agreement within the meaning of 221(1) of the Act (s 223(b)).

[4] However, as I proposed to approve the application for the new Agreement with a commencement date of 28 September 2015 (See: Newcastle Permanent Building Society Pty Ltd t/as Newcastle Permanent [2015] FWCA 6391), the old Agreement would necessarily cease operation on that same day pursuant to s 54(2)(b) of the Act. Given these circumstances, the parties consented to the dismissal of this application.

[5] I propose to dismiss this application pursuant to s 587(1) of the Act and make orders accordingly.

DEPUTY PRESIDENT

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