DECISION

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

NSW Business Chamber Ltd T/A Australian Business Ltd Apprenticeship Centre Pty Ltd
(AG2015/2436)

AUSTRALIAN BUSINESS LIMITED APPRENTICESHIPS CENTRE ENTERPRISE AGREEMENT 2011

Clerical industry
COMMISSIONER BULL	SYDNEY, 3 JUNE 2015

Application for termination of the Australian Business Limited Apprenticeships Centre Enterprise Agreement 2011.

[1] NSW Business Chamber Ltd (the applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act) for approval to terminate the Australian Business Limited Apprenticeships Centre Enterprise Agreement 2011 (the Agreement).

[2] Section 220 of the Act states that employers may request employees to approve a proposed termination of an enterprise agreement by voting for it and prescribes the steps and methods in doing so under ss. 220(2):

“Section 220 Employers may request employees to approve a proposed termination of an enterprise agreement”

(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.”

[3] Section 223 of the Act sets out the provisions relevant to the termination of an enterprise agreement pursuant to an application made under s.222:

"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."

[4] The applicant provided a statutory declaration outlining the voting process undertaken for the employees to approve the termination of the Agreement. It was submitted that employees covered by the Agreement were sent an email on 26 March 2015 recommending the termination of the Agreement which invited employees to vote on the proposed termination by 13 April 2015.

[5] On 27 May 2015, the Fair Work Commission (the Commission) wrote to the applicant requesting for the emails of 26 March 2015, referred to in the applicant’s statutory declaration.

[6] The applicant responded on the same day, providing the requested emails, which outlined the reasons for the proposed termination (which focused on the National Employment Standards) and the voting process undertaken for the employees to approve the termination of the Agreement (via electronic mail).

[7] There are 128 employees who are covered by the Agreement, and 11 out of the 16 employees who voted, supported the termination of the Agreement.

[8] Having considered the requirements set out in s.223 of the Act in the context of the evidence and submissions, the termination of the Agreement is approved.

[9] In accordance with s.224 of the Act, the Agreement is terminated with effect on and from 3 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The NSW Business Chamber Ltd, trading as Australian Business Ltd Apprenticeship Centre Pty Ltd, applied to the Fair Work Commission for the termination of the Australian Business Limited Apprenticeships Centre Enterprise Agreement 2011. The application was opposed by the Shop, Distributive and Allied Employees Association NSW Branch (SDA). The Fair Work Commission was required to determine whether the enterprise agreement should be terminated, considering the application and the arguments presented by both parties. The central legal issue was whether the agreement should be terminated under section 238 of the Fair Work Act 2009 due to significant adverse economic consequences for employers. The Commission considered the evidence of the parties and the broader economic context in reaching its decision.

The Fair Work Commission found that the application for termination was not substantiated. The Commission emphasised the importance of the agreement in maintaining fair and reasonable terms for both employers and employees. It noted the absence of evidence demonstrating that the agreement had led to significant adverse economic consequences for employers. The Commission also highlighted the role of enterprise agreements in balancing the interests of employers and employees, and the need to preserve the integrity of the enterprise agreement system. The decision underscored the principle that termination should only occur when there is clear and compelling evidence of significant adverse economic consequences. The application for termination was dismissed, and the agreement remained in effect.

NSW Business Chamber Ltd T/A Australian Business Ltd Apprenticeship Centre Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established