North Fresh Pty Ltd T/A Costa Avocado
[2024] FWCA 2877
•5 AUGUST 2024
| [2024] FWCA 2877 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
North Fresh Pty Ltd T/A Costa Avocado
(AG2024/2681)
COSTA AVOCADO CATEGORY ENTERPRISE AGREEMENT 2018-2022
| Agricultural industry | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 5 AUGUST 2024 |
Application for termination of the Costa Avocado Category Enterprise Agreement 2018-2022
North Fresh Pty Ltd (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate the Costa Avocado Category Enterprise Agreement 2018-2022[1] (the Agreement). The Agreement is expressed to cover the Applicant and employees falling within the scope of the classification structure in the Agreement in all Costa Avocado facilities in Australia.
Sections 222 and 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:
“222 Application for FWC 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 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 FWC considers it fair to extend that period— within such further period as 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.”
Consideration
The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the FWC/Commission) on 5 March 2019.[2] It began operation on 12 March 2019 with a nominal expiry date of 30 October 2022. It is an agreement made directly with employees and no industrial organisation is covered by it.
Section 222
I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by North Fresh Pty Ltd (Applicant), a person covered by the Agreement. Further, it was accompanied by the material required by the Fair Work Commission Rules 2024, being made by Form F24 and is accompanied by a Form F24A declaration setting out the basis upon which the FWC can be satisfied that the requirements of s.223 of the Act have been met.
Section 222(3) sets out the timeframe within which an application must be made. In its Form F24, the Applicant stated the termination was agreed to on 3 July 2024 and the application was lodged on 17 July 2024, which is within the 14-day timeframe stipulated at s.222(3)(a) of the Act.
Section 223
I must approve the application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.
Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)
The employer must take all reasonable steps to notify the employees of the time and date of the vote, the voting method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).
In the Form F24A Ms Mulder, who is the National HR/WHS Manager – Avocados & Banana, declared the steps taken in respect of s.220(2)(a) and s.220(2)(b).
I am satisfied, on the basis of the material before me, that the above steps satisfy the requirements of s.220(2)(a) and s.220(2)(b).
The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)
The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
In the Form F24A, Ms Mulder, declared that voting commenced on 24 June 2024 and ended on 3 July 2024, as such, the termination was agreed to on 3 July 2024. Ms Mulder detailed the number of employees covered by the Agreement, how many voted and how many voted to approve the termination of the Agreement.
Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).
There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.
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 – s.223(d)
As outlined above, the Agreement is expressed to cover the Applicant and its employees engaged in the classifications contained in the Agreement[3] As it does not cover any employee organisation, there are no views to take into account pursuant to s.223(d).
Conclusion
In the circumstances I consider it appropriate to approve the termination. The termination will operate from 5 August 2024. An order giving effect to this decision will be issued separately.[4]
DEPUTY PRESIDENT
[1] [2019] FWCA 1460.
[2] Ibid.
[3] Ibid.
[4] AE502152 PR777884
Printed by authority of the Commonwealth Government Printer
<AE502152 PR777883>
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