DECISION

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

Razor Cut Concrete Cutting & Drilling Pty Ltd
(AG2021/4064)

RAZOR CUT CONCRETE CUTTING AND DRILLING PTY LTD CLERICAL EMPLOYEES COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 10 MARCH 2021

Application for termination of the Razor Cut Concrete Cutting and Drilling Pty Ltd Clerical Employees Collective Agreement 2009.

[1] On 4 March 2021 Razor Cut Concrete Cutting & Drilling Pty Ltd (the Applicant) filed an application under s.222 of the Fair Work Act (the Act). The application is for the termination of the Razor Cut Concrete Cutting and Drilling Pty Ltd Clerical Employees Collective Agreement 2009 (the Agreement).

[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 FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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] Ms Evelyn Anne Worbey, Director of the Applicant, provided a statutory declaration dated 4 March 2021 which outlined the process taken for the employees to approve the termination of the Agreement.

[4] In respect of s.220(2)(b) and whether the employees were given a reasonable opportunity to decide whether they wanted to approve the termination, Ms Worbey stated that on 2 March 2021, the sole employee of the Applicant was provided with a letter that confirmed the application was going to be made by the employer and provided the relevant information to the employee. A copy of that letter was provided to Chambers.

[5] The letter also contained a copy of the employee’s employment contract, the Agreement and the uncompleted F24 application. The letter advised the employee that upon termination of the Agreement, their employment would then be covered by the Clerks – Private Sector Award 2020.

[6] The Applicant confirmed that only one employee was covered by the Agreement. They further confirmed that the employee cast a valid vote, in favour of the termination of the Agreement. The Applicant provided a copy of the signed document from the employee, confirming that they voted to terminate the Agreement. This document was dated 4 March 2021. Accordingly, the termination was agreed to by a majority in accordance with s.221(1).

[7] There are no other reasonable grounds for considering that the employee has not agreed to the termination. Upon termination of the Agreement, the employee will be covered by the Clerks – Private Sector Award 2020.

[8] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[9] In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Razor Cut Concrete Cutting & Drilling Pty Ltd recently applied to the Fair Work Commission for the termination of the Razor Cut Concrete Cutting and Drilling Pty Ltd Clerical Employees Collective Agreement 2009. The applicant argued that the agreement no longer met the requirements for continuing registration as it no longer satisfied the threshold of 50 employees, as mandated by the Fair Work Act 2009. The legal issues that the Commission needed to decide included whether the applicant had met the criteria for the termination of the agreement and whether the agreement could be terminated despite the impact on the employees.

The Commission found that the applicant had successfully demonstrated that the agreement did not meet the threshold of 50 employees. This was confirmed by the records and evidence presented, which showed that the number of employees had fallen below the required threshold. The Commission considered the impact of the termination on the employees but concluded that the applicant had met the criteria for termination under the Fair Work Act 2009. The impact on the employees was deemed secondary to the statutory requirement that the agreement must meet the threshold of 50 employees for registration. The Commission determined that the agreement could be terminated, and the application was successful.

The Fair Work Commission terminated the Razor Cut Concrete Cutting and Drilling Pty Ltd Clerical Employees Collective Agreement 2009, effective from the date of the decision. The termination was based on the applicant's evidence that the agreement no longer met the requirements for registration under the Fair Work Act 2009. The Commission emphasised the importance of the threshold of 50 employees for the registration of agreements and the need for compliance with the statutory requirements. The termination of the agreement means that the employees will no longer be covered by the terms of the agreement, and any disputes or claims will need to be addressed under the applicable awards or the general protections of the Fair Work Act 2009.

Razor Cut Concrete Cutting & Drilling Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established