Oakmoore Pty Ltd T/A EGR Extrusion

[2020] FWCA 1635

[2020] FWCA 1635

FAIR WORK COMMISSION

DECISION

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

Oakmoore Pty Ltd T/A EGR Extrusion
(AG2020/863)

EGR EXTRUSION ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 3 APRIL 2020

Application for termination of the EGR Extrusion Enterprise Agreement 2013.

[1] On 25 March 2020 Oakmoore Pty Ltd T/A EGR Extrusion(the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Yorkeys Knob Boating Club Inc. Collective Agreement 2006 (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] Ms Jody Dowling, Human Resources Manager of the Applicant provided a statutory declaration dated 25 March 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, Ms Dowling’s evidence was that on 11 March 2020, a memorandum was delivered by hand to all staff notifying that a vote would be held on whether the Agreement would be terminated. Group information sessions were held on 13 and 16 March 2020 to provide staff with further information and provide an opportunity for questions to be asked in a group setting. Staff were also provided contact details should employees have further questions. Staff were provided access to copies of the relevant Award (the Manufacturing and Associated Industries and Occupations Award 2010 and the Agreement and links to the Commission’s website were provided referring employees to these documents.

[5] The Applicant provided the Commission with copies of the PowerPoint slides utilised in the group sessions which summarised some key differences between the Agreement and the Award. The PowerPoint presentation explained that it was not a substitute for reading the Award and the Agreement and encouraged staff to carefully consider those documents.

[6] A confidential ballot was conducted on 18 March 2020 between 6:00am and 5:00pm. Voting was administered by a paper ballot. Of the 17 employees who were covered by the Agreement, 17 votes were cast. A majority of voters voted ‘yes’ to terminate the Agreement with 16 votes and 1 voter voted ‘no’. 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 Manufacturing and Associated Industries and Occupations 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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