Penguin Composites Pty Ltd

[2020] FWCA 496

[2020] FWCA 496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Penguin Composites Pty Ltd
(AG2020/30)

PENGUIN COMPOSITES ENTERPRISE AGREEMENT 2010

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 31 JANUARY 2020

Application for termination of the Penguin Composites Enterprise Agreement 2010

[1] This decision concerns an application made by Penguin Composites Pty Ltd (Penguin) to terminate the Penguin Composites Enterprise Agreement 2010 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees covered by the Agreement that agreed to the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date was 23 November 2013. No unions are covered by the Agreement.

[3] The relevant provisions of the Act are 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.”

[4] The application was made under s 222 and was accompanied by the required material. It was made nine days outside the 14-day period contemplated by s 222(3), however in all the circumstances I consider it fair to extend the period.

[5] Based on the material contained in the statutory declaration of Mr John van der Woude, which was filed with the application, I am satisfied that each of the requirements in s 223 of the Act have been met. I am satisfied that Penguin complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as a majority of employees who cast a valid vote voted to approve the termination. There are no reasonable grounds for believing that the employees have not agreed to the termination.

[6] Finally, I am satisfied that it is appropriate to approve the termination. I note that the Agreement has long since passed its nominal expiry date and its minimum wage rates are now less than those specified in the underpinning award, the Manufacturing and Associated Industries and Occupations Award 2010. There are no employee organisations covered by the Agreement whose views can be taken into account.

[7] Given my conclusion that the requirements of s 223 are met, I am required by that section to approve the termination of the Agreement, and I do so. The termination will operate from 7 February 2020.

[8] An order giving effect to this decision will be issued separately in PR716300.

DEPUTY PRESIDENT

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