Orrcon Distribution Pty Ltd T/A Orrcon Steel
[2022] FWCA 4589
•23 DECEMBER 2022
| [2022] FWCA 4589 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Orrcon Distribution Pty Ltd T/A Orrcon Steel
(AG2022/4488)
Orrcon Steel Bendigo Enterprise Agreement 2019
| Storage services | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 23 DECEMBER 2022 |
Application for termination of the Orrcon Steel Bendigo Enterprise Agreement 2019
Orrcon Distribution Pty Ltd T/A Orrcon Steel (Orrcon) has filed a Form F24 application (the Application) for termination of the Orrcon Steel Bendigo Enterprise Agreement 2019 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act). The Application was accompanied by a Form F24A Declaration in support of termination of an enterprise agreement (Form F24A) made by Annie Maingi, People Business Partner VIC and NSW.
The Act relevantly provides as follows:
“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
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 Orrcon, a person covered by the Agreement. It was accompanied by the material required by the Fair Work Commission Rules 2013 (being made by Form F24 and 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, being within 14 days after the termination is agreed to or if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows. In its Form F24 Orrcon stated the termination was agreed to on 18 October 2022 and the Application was filed within the requisite 14 days, on 26 October 2022.
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 and the 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, Annie Maingi outlined in respect of s.220(2)(a) that the notification to employees of the time and place at which the vote would occur occurred at a meeting with employees on 6 October 2022, at which time the employees were also advised there would be an access period of 7 days before a vote to take place on 18 October 2022. I am satisfied the above steps satisfy the requirements of s.220(2)(a).
In the Form F24A, Annie Maingi declared the following steps were taken in respect of s.220(2)(b):
(i) There was a first meeting on 16 August 2022, at which the proposal to terminate the Agreement was put to employees, a Q&A session was held explaining what termination would mean and what terms and conditions would apply following termination;
(ii) There was a second meeting on 7 September 2022, at which responses to any outstanding issues from the first meeting were provided, together with an example document outlining the terms and conditions that would apply if the Agreement was terminated. Additionally, employees were given a further opportunity to ask any questions that they had about the proposed change to the terms and conditions of their employment; and
(iii) There was a third meeting on 6 October 2022 where a final Q&A session was conducted and more support documents that had been requested were provided.
I am satisfied, the above steps satisfy the requirements of 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, Annie Maingi declared that voting commenced on 18 October 2022 and ended that same day, 6 employees are covered by the Agreement, 5 employees cast a valid vote and 5 employees voted to approve the termination of the Agreement. The termination was agreed to on 18 October 2022.
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)
The Agreement is expressed to cover Orrcon and its employees engaged to perform work under the classifications set out in Schedule 1 of the Agreement at Orrcon’s premises at 15-35 Fairview Road, Kangaroo Flat in Victoria. It does not cover any employee organisation.
Conclusion
Based on the material contained in the declaration made by Annie Maingi filed with the Application, I am satisfied that Orrcon has complied with the requirements in s.220(2) of the Act. The Application has been made in accordance with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.
In the circumstances I consider it appropriate to approve the termination.
The termination will operate from 23 December 2022.
An order giving effect to this decision is separately issued in PR749245.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE506139 PR749250>
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