Razor Cut Concrete Cutting & Drilling Pty Ltd

[2022] FWCA 2231

[2022] FWCA 2231

The attached document wholly replaces the document previously issued with the code [2022] FWC 1712 on 4 July 2022 to correct document referencing.

Associate to Commissioner Spencer

Dated 5 July 2021

[2022] FWCA 2231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Razor Cut Concrete Cutting & Drilling Pty Ltd

(AG2022/1823)

RAZORCUT CONCRETE CUTTING AND DRILLING PTY LTD ENTErPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 4 JULY 2022

Application for termination of the Razorcut Concrete Cutting and Drilling Pty Ltd Enterprise Agreement 2014

1. An application pursuant to s.222 of the Fair Work Act 2009 (the Act) was made by Razor Cut Concrete Cutting & Drilling Pty Ltd (the Applicant) to terminate the Razorcut Concrete Cutting and Drilling Pty Ltd Enterprise Agreement 2014 (the Agreement).

1. The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 31 January 2018.

1. 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.”

1. The following submissions were provided in support of the Application to terminate the Agreement.

Section 223(a) – Compliance with section 220(2) of the Act

1. On 23 May 2022, the Applicant held a meeting with all employees covered under the Agreement to advise them of the proposed termination of the Agreement, the effect of the termination and the voting process. The employees had an opportunity to ask the Applicant questions about the proposed termination both during, and after, the meeting.

1. Following the meeting, the Applicant emailed letters to each of the employees advising that ‘[o]n Monday, 30/05/2022, Razor Cut will hold a vote to terminate the Agreement. The vote will take place from 7:00am to 7:30am on this date at 3 Central Park Drive. The vote will be conducted by show of hands.’

1. The Applicant also provided an explanation of the comparison between the Agreement and the relevant Award to the employees, along with a link to the Agreement and the Award for consideration.

1. The date of the vote was subsequently changed to 31 May 2022 because one of the employees covered by the Agreement had an RDO scheduled for the day of the vote. This was verbally communicated to the employees.

1. The Applicant submitted that it satisfied the criteria set out in section 220(2) of the Act because the employees were:

(a)notified of the proposed termination of the Agreement and the effect of the termination;

(b)given all relevant documentation, namely a copy of the Award and the Agreement, so that they could properly consider the proposed termination of the Agreement;

(c)given an opportunity to ask the Applicant questions about the proposed termination;

(d)given a reasonable period of time to consider whether they wanted to terminate the Agreement;

(e)notified in writing of the time and place the vote would occur, as well as the voting method to be used; and

(f)verbally provided updated information on the date and time of the vote when it could not be held on the original day it was scheduled, namely 30 May 2022.

1. In doing so, the Applicant submits that it also met the requirement specified in section 223(a) of the Act.

Section 223(b) of the Act – Termination was agreed to by employees

1. On 31 May 2022, the Applicant held a meeting with its employees covered by the Agreement so that they could vote on the termination of the Agreement. The employees were asked whether they agreed with the Applicant’s proposal to terminate the current enterprise agreement known as the Razor Cut Concrete Cutting and Drilling Pty Ltd Single Enterprise Agreement 2014. The two (2) employees covered by the Agreement answered the question in the affirmative and this was recorded in a file note by the Applicant. The file note was signed by both employees, as well as the Applicant.

1. Given that both employees voted in favour of the Agreement being terminated, the termination of the Agreement was approved by a majority of the employees who cast a valid vote.

1. In the circumstances, the Applicant submitted that termination of the Agreement has been ‘agreed to’ for the purposes of section 221(1) of the Act. In doing so, the Applicant submitted that it also met the requirement specified in section 223(b) of the Act.

Section 223(c) of the Act – The Commission is satisfied there are no other reasonable grounds to believe employees have not agreed to the termination

1. The Applicant submits that there are no reasonable grounds for the Commission to believe the termination of the Agreement was not agreed to by the employees of the Applicant and, accordingly, the Applicant has met the requirement specified in section 223(c) of the Act.

Section 223(d) of the Act

1. The Applicant submitted that as no employee organisation is covered by the Agreement, section 223(d) is not a relevant consideration when determining the Applicant’s Application.

1. Taking into account the above submissions, it is appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated.

1. In accordance, with s.224 of the Act, the termination of the Agreement will take effect from the date of this Decision.

1. 
   I Order accordingly.

COMMISSIONER

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