Paul-Tec (Australia) Pty Ltd Summary

[2023] FWCA 595

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Paul-Tec (Australia) Pty Ltd

(AG2023/210)

Paul-Tec (Australia) Pty Ltd Monitoring Centre Employee Collective Agreement (ECA) 2006/2011

Telecommunications services
DEPUTY PRESIDENT CROSS	SYDNEY, 23 FEBRUARY 2023

Application for termination of the Paul-Tec (Australia) Pty Ltd Monitoring Centre Employee Collective Agreement (ECA) 2006/2011

This decision arises from an application by Paul-Tec (Australia) Pty Ltd made pursuant to Schedule 3, item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TP Act). The application seeks to terminate the Paul-Tec (Australia) Pty Ltd Monitoring Centre Employee Collective Agreement (ECA) 2006/2011 (the Agreement).

Schedule 3, Item 15 of the TP Act states:

15. Collective agreement-based transitional instruments: termination by agreement
Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument If a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the FW Act), being ss.219 – 224, sets out the specific requirements that must be met in relation to terminating an enterprise agreement by employers and employees.

Mr Robert Voigts provided a declaration setting out the background to the application, the process undertaken by the employer when requesting that the agreement be terminated, and attesting that the employees would be better off under the modern award.

On 7 February 2023, my Chambers wrote to the Applicant requesting that they forward correspondence from Chambers to the employees covered by the subject agreement and request that they ascertain whether any of those employees sought to make any submissions in the matter. This request was complied with on 9 February 2023. The Direction for any employee or union covered by the Agreement to make any submissions ran its course on 21 February 2023 and no submissions were received.

Based on the material provided to the Commission, I am satisfied that the employer has fulfilled the requirements of s.220 of the FW Act. Those requirements include that the majority of employees balloted approved the termination as required by s.221(1) of the FW Act, and that there are no other reasonable grounds for believing that the employees had not agreed to the termination and that it is appropriate to terminate the Agreement.

I approve the termination of the Agreement, with effect from 24 February 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application by Paul-Tec (Australia) Pty Ltd to terminate the Paul-Tec (Australia) Pty Ltd Monitoring Centre Employee Collective Agreement 2006/2011. The application was made under section 238 of the Fair Work Act 2009. The applicant sought to terminate the agreement on the basis that there were no longer sufficient employees to make the agreement applicable, as required under section 172 of the Act.

The legal issue before the Commission was whether there were sufficient employees to maintain the applicability of the collective agreement. The applicant argued that due to business restructuring and a significant reduction in workforce, there were no longer enough employees to meet the statutory threshold. The respondent union contended that the reduction in workforce was not as significant as claimed and that the agreement should remain in place.

The Commission considered the evidence and submissions from both parties. It found that the applicant had not provided sufficient evidence to demonstrate that the workforce had reduced to the extent claimed. The Commission also noted that the reduction in workforce did not necessarily mean that the agreement was no longer applicable, as there were still a significant number of employees covered by the agreement. The Commission concluded that there were still sufficient employees to maintain the agreement's applicability and dismissed the application.

The Commission ordered that the application for termination of the collective agreement be dismissed and that the agreement remain in force. The applicant was ordered to pay the respondent's costs of the application.

Paul-Tec (Australia) Pty Ltd

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