Nortruss (N.T.) Pty Ltd

[2021] FWCA 226

[2021] FWCA 226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Nortruss (N.T.) Pty Ltd
(AG2020/4168)

NORTRUSS GROUP ENTERPRISE AGREEMENT 2017

Retail industry
COMMISSIONER JOHNS	SYDNEY, 18 JANUARY 2021

Application for termination of the Nortruss Group Enterprise Agreement 2017.

[1] On 23 December 2020, Notruss (N.T.) Pty Ltd (the Applicant) made an application (the Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to terminate the Nortruss Group Enterprise Agreement 2017 (the Agreement).

[2] The Agreement is a multi-enterprise agreement. It was approved by Commissioner Lee on 16 January 2018. 1 The nominal expiry date of the Agreement is 15 January 2022.

Legislation

[3] The relevant provisions of the Act are 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.”

Consideration

[4] In support of the Application, Ms Vicki McGown¸ Human Resources Manager of the Applicant, has filed a Form F24 – Application for termination of an enterprise agreement by agreement and a Form F24A – Declaration in support of Termination of an enterprise agreement.

[5] On 14 January 2021, my Chambers wrote to the Applicant by email, requesting copies of documents referred to in the Form F24A, including a letter of intent sent to all staff covered by the agreement, letter of proposed changes issued to managers, consultation material, letter of proposed changes issued to staff after consultation (including pay rates under the award) and a copy of the ballots. In determining whether the Agreement should be terminated, I have considered all the materials before me.

[6] I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant has standard to make the application. I am satisfied that before making the request, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used. I am further satisfied that the employer has afforded the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

[7] The termination was agreed to on 16 December 2020. There were 58 employees covered by the agreement and 58 valid votes cast. Of the votes cast, 52 employees voted to terminate the agreement. The Application was made within 14 days of the termination being agreed and was accompanied by the appropriate declaration.

[8] Section 223 of the Act provides that the Commission must approve the termination of an Agreement if ss.223(a)-223(d) of the Act are satisfied. In the present matter, I find that each of the requirements have been satisfied.

Conclusion

[9] It follows that the Agreement should be terminated.

[10] Pursuant to s.224 of the Act, the termination will take effect from 18 January 2021. An Order to this effect [PR726243] has been issued concurrently with this decision.

COMMISSIONER

 1   [2018] FWCA 85

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