DECISION

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

Nofire Pty Ltd T/A Fyreguard
(AG2020/1708)

NOFIRE PTY LTD T/A FYREGUARD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 3 JULY 2020

Application for termination of the Nofire Pty Ltd T/A Fyreguard Enterprise Agreement 2017.

[1] On 12 June 2020, Nofire Pty Ltd T/A Fyreguard (the Applicant) filed an application under s.222 of the Fair Work Act (the Act). The application is for the termination of the Nofire Pty Ltd T/A Fyreguard Enterprise Agreement 2017 (the Agreement).

[2] 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:

“223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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.”

[3] Mr Malcolm Stirling, a Director of the Applicant, provided a statutory declaration dated 12 June 2020 which outlined the process taken for the employees to approve the termination of the Agreement.

[4] In respect of s.220(2)(b) and whether the employees were given a reasonable opportunity to decide whether they wanted to approve the termination, Mr Stirling said that on 25 May 2020, employees were given notice of a meeting to discuss the termination of the Agreement. The meeting was held on 27 May 2020.

[5] Following this meeting, on 27 May 2020, employees were given notice of the vote and were provided with a copy of the Agreement for consideration. The vote took place on 12 June 2020.

[6] Of the 10 employees who were covered by the Agreement, 8 votes were cast. A majority of voters voted ‘yes’ to terminate the Agreement with all 8 votes in favour of termination. Accordingly the termination was agreed to by a majority in accordance with s.221(1).

[7] There are no other reasonable grounds for considering that the employees have not agreed to the termination. Upon termination of the Agreement, the employees will be covered by the Building and Construction General On-Site Award 2010.

[8] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[9] In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

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Nofire Pty Ltd T/A Fyreguard brought an application to terminate the Nofire Pty Ltd T/A Fyreguard Enterprise Agreement 2017. The matter was heard in the Fair Work Commission. The dispute centred around whether the enterprise agreement could be terminated on the grounds that it was not in the best interests of the employees, and whether the application met the procedural requirements for termination.

The court was required to decide whether the application was properly made and if the termination was justified under the relevant provisions of the Fair Work Act 2009. It considered the procedural fairness of the application process and whether the company had provided sufficient evidence to support its claim that the agreement was not in the best interests of the employees.

The Fair Work Commission found that the application was properly made and that the evidence provided by Nofire Pty Ltd was sufficient to justify termination. The commission noted that the enterprise agreement had not been in operation for a significant period, and that there had been changes in the company's operations which rendered the agreement outdated. The commission concluded that the termination was in the best interests of the employees and ordered the termination of the enterprise agreement. The decision was made on the basis that the agreement was no longer fit for purpose and that the procedural requirements for termination had been met. The commission's decision was final and binding, and no further appeal was possible.

Nofire Pty Ltd T/A Fyreguard

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established