Police Community Youth Clubs T/A PCYC

[2016] FWCA 6116

[2016] FWCA 6116

FAIR WORK COMMISSION

DECISION

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

Police Community Youth Clubs T/A PCYC
(AG2016/4481)

Children's services
COMMISSIONER JOHNS	MELBOURNE, 29 AUGUST 2016

Application for termination of the PCYC Enterprise Agreement 2012-2014.

[1] On 15 July 2016, the Police Community Youth Clubs T/A PCYC (applicant/PCYC) made an application in the Fair Work Commission (Commission) to terminate the PCYC Enterprise Agreement 2012-2014 (2012 Agreement) under s.222 of the Fair Work Act 2009 (Cth)(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:

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.

[3] The application was supported by a Statutory Declaration made by Darren Black, the Chief Executive Officer of the applicant. Mr Black declared that the following steps were taken by the applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) initial discussion were held with the relevant employees in October 2015;

b) subsequent discussions about the effects of the termination, were held between February and April 2016;

c) prior to 27 May 2016, an email was sent to the relevant employees, explaining that voting via email would commence from 27 May 2016 and cease on 1 June 2016;

d) 14 out of the 17 valid employees voted, however the employer failed to lodge this application within the prescribed 14 day period as outlined in section 222(3) of the Act; and

e) consequently, on 8 July 2016, the applicant sent another email to the relevant employees, explaining that bargaining will commence immediately, and cease on 11 July 2016.

[1] Mr Black also declared that 16 of the 17 employees covered by the 2012 Agreement voted on its termination and all 16 voted in favour.

[2] On 5 August 2016 the Commission directed that:

a) any employee or organisation opposing the termination of the Agreement, must file submissions in opposition by 12 August 2016; and
b) the applicant must email a copy of the Directions to its employees and file a statutory declaration confirming compliance with the same.

[1] Later on 5 August 2016, Ms Karen Hope, General Manager Human Resources & RTO, filed a statutory declaration confirming that the Directions had been emailed to employees.
[2] No submissions in opposition were filed.
[3] On 15 August 2016, the Commission wrote to the applicant querying the utility of the application in light of the fact that pursuant to section 58 of the Act, the 2012 Agreement would ordinarily have ceased to operate, upon the commencement of the 2015 PCYC Enterprise Agreement 2015-2018 (2015 Agreement) on 13 December 2015.
[4] On 15 August 2016, Mr Ian Litchfield, Industrial Relations Consultant, writing on behalf of the applicant, submitted that “the two agreements while similar, there is a slight difference in coverage” relating to senior managers.
[5] The 2012 Agreement included “Executive managers other than the CEO and State Office Staff”. The 2015 Agreement includes “State Office Employees (excluding the CEO, General Managers, Regional General Managers and Senior Managers State Office)”. Consequently, the applicant is concerned that there might be some Executive Managers who remain covered by the 2012 Agreement because of the change in language used in the 2015 Agreement. For that reason, out of an abundance of caution, the applicant wants the 2012 Agreement terminated.
[6] On 16 August 2016, the Commission invited the AWU to advise if it supported the application to terminate the 2012 Agreement. On the same day, Ms Leah Tucker, from the AWU, informed the Commission that the AWU does not oppose the application to terminate the 2012 Agreement.

[7] Based on the material that is before the Commission, including the statutory declaration provided by the employer, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[8] In accordance with s.224 of the Act, the termination will come into effect today.

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