Orica Ltd

[2021] FWCA 5993

[2021] FWCA 5993

FAIR WORK COMMISSION

DECISION

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

Orica Ltd
(AG2021/7543)

ORICA AUSTRALIA PTY LTD WEST REGION ANE ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 SEPTEMBER 2021

Application for termination of the Orica Australia Pty Ltd West Region ANE Enterprise Agreement 2017.

[1] On 21 September 2021, Orica Limited T/A Orica Australia Pty Ltd (the Applicant) applied for the termination of the Orica Australia Pty Ltd West Region ANE Enterprise Agreement 2017 (the Agreement) 1 under s 222 of the Fair Work Act 2009 (Cth) (the Act).

[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. Section 223 of the Act is as follows:

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

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.

[3] In support of its application, the Applicant provided a declaration from Dayle Browne, the Manager - Human Resources Business Partner of the Applicant.

[4] The Manager explained that the Agreement had a nominal expiry date of 3 July 2020 and there was one employee covered by the Agreement. On 6 September 2021, a meeting was held between the Applicant and the employee, where the proposal of the termination of the Agreement was explained to the employee.

[5] Following the meeting, a letter was issued to the employee introducing the proposal to terminate the Agreement. On 8 September 2021, a second meeting between the Applicant and the employee was held to discuss the Agreement termination and the process involved.

[6] On 10 September 2021, a letter was emailed to the Employee confirming the Applicant’s intention to terminate the Agreement. This email included a petition for the employee. On 12 September 2021, the Applicant received an email from the Employee with a signed petition in support of the termination of the agreement.

Consideration

[7] The application was made in the requisite timeframe, 2 and was supported by a declaration (Form F24A) from the Applicant which was accompanied by comprehensive evidence. The declaration set out, among other things, that the employee covered by the Agreement was informed of the effect of the termination, was provided with reasonable time to consider termination of the Agreement and cast a valid vote in the form of a signed petition to approve the termination of the Agreement.

[8] Having considered the material before me, including the application and the aforementioned declaration and accompanying annexures of the Manager, I am satisfied that the requirements of s 223 of the Act have been met. Therefore, in accordance with s 223, I must terminate the Agreement.

[9] Accordingly, the Agreement is terminated and pursuant to s 224 of the Act, the termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE424793  PR734288>

 1   [2017] FWCA 3504; AE424793.

 2 Section 222(3) of the Fair Work Act 2009 (Cth).