Polyseal Waterproofing Australia Pty Limited

[2013] FWCA 7717

[2013] FWCA 7717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Polyseal Waterproofing Australia Pty Limited
(AG2013/2893)

POLYSEAL WATERPROOFING AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 25 OCTOBER 2013

Application for termination of the Polyseal Waterproofing Australia Pty Ltd Enterprise Agreement 2012.

[1] This Decision concerns an application made on 17 September 2013 by Polyseal Waterproofing Australia Pty Limited (the Applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act), to terminate the Polyseal Waterproofing Australia Pty Ltd Enterprise Agreement 2012 (the Agreement).

[2] The Agreement has a nominal expiry date of 16 May 2016.

[3] Given that the Agreement has not yet expired, then the application before myself cannot proceed under section 225 which deals with the termination of an enterprise agreement after its nominal expiry date. As the intent of the consent application is to terminate an enterprise agreement that has not yet expired, I will proceed and deal with the application as if the application was made under section 222 of the Act.

[4] There is no union covered by the Agreement.

[5] The application (Form F24) was accompanied by Statutory Declarations from the Applicant and the Construction, Forestry, Mining and Energy Union (CFMEU).

The Relevant Legislation

[6] The relevant provisions of the Act dealing with an application to terminate an enterprise agreement are:

“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 Fair Work Commission (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.”

[7] Section 223 sets out four requirements for terminating an enterprise agreement.

[8] Section 223(a) sets out the first requirement which is contained in section 220(2) which goes to the Employer notifying employees of the voting process for considering the termination of an enterprise agreement. In this instance, section 220(2) has no application as the Employer/Applicant no longer employs any employees who would be covered by the Agreement. That was the stated position of the Statutory Declaration made out by Mr Graham Athanaseris, Managing Director.

[9] I had a telephone conversation with Mr Athanaseris on 24 October 2013 and he explained that the Employer still has employees but their conditions of employment are now governed by a different enterprise agreement which was approved by the FWC on 20 September 2013: AE404203.

[10] That stated position and explanation was supported by a Statutory Declaration filed by Ms Rita Mallia of the Construction, Forestry, Mining and Energy Union (the CFMEU) and by my telephone conversation with Mr Warren Kelly of the CFMEU.

[11] The second requirement for terminating an enterprise agreement is section 223(b). It cross references section 221(1) and (2) as to the type of enterprise agreement (single-enterprise or multi-enterprise respectively) sought to be terminated. Section 221(1) is the applicable provision under my consideration and goes to the voting outcome (majority decision for termination). I was advised that that process had been carried out.

[12] Section 223(c) sets out the third requirement for terminating an enterprise agreement and goes to the voting process. This requirement was not raised as an issue by the Employer or the CFMEU.

[13] Section 223(d) is the fourth requirement for terminating an enterprise agreement and asks if the FWC considers it appropriate to approve the termination given the views of any employee organisation covered by the Agreement. The CFMEU is not covered by the Agreement. But the Statutory Declaration of the CFMEU consenting to the Employer/Applicant application, gives me comfort in determining this fourth requirement.

[14] Based on the evidence provided, I am satisfied that the Applicant has complied - to the extent possible - with the requirements of the Act for the termination of an enterprise agreement.

[15] Accordingly, the termination of the Polyseal Waterproofing Australia Pty Ltd Enterprise Agreement 2012 takes effect from the date of this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code {A}, AE893827  PR542826>