Rivalea (Australia) Pty Ltd T/A Rivalea

[2022] FWCA 278

[2022] FWCA 278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Rivalea (Australia) Pty Ltd T/A Rivalea

(AG2022/84)

Rivalea (Australia) Pty Ltd and The Australian Workers’ Union Huntly Enterprise Agreement 2017

Agricultural industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 1 FEBRUARY 2022

Application for termination of the Rivalea (Australia) Pty Ltd and The Australian Workers’ Union Huntly Enterprise Agreement 2017

1. Rivalea (Australia) Pty Ltd T/A Rivalea (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Rivalea (Australia) Pty Ltd and The Australian Workers’ Union Huntly Enterprise Agreement 2017 (the Agreement). The Applicant is the employer covered by the Agreement.

1. The Agreement is a single enterprise agreement. The Agreement’s nominal expiry date is 28 May 2021.

1. The Australian Workers’ Union is the employee organisation covered by the Agreement.

1. Section 222 of the Act provides:

“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.”

1. Section 223 of the Act provides:

“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. Section 224 of the Act provides:

“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.”

1. The application was supported by a Statutory Declaration made by Mr John Rattray, Industrial Relations Manager of the Applicant, on 11 January 2022.

1. Mr John Rattray declared, amongst other things, that of the 41 employees covered by the Agreement, 34 cast a valid vote in relation to whether the Agreement should be terminated and 28 voted to terminate the Agreement.

1. On 11 January 2022 I issued the following Directions:

[3] By no later than close of business Friday, 14 January 2022 the Employer must serve upon the employees whose terms and conditions of employment are regulated by the Agreement (relevant employees) and The Australian Workers’ Union (AWU) a copy of:

(a) these directions
(b) Form F24 application for termination of an enterprise agreement by agreement filed by the Employer on 11 January 2022; and
(c) Form F24A Statutory declaration in support of termination of an enterprise agreement by agreement dated 11 January 2022 made by John Rattray.

[4] By no later than close of business Friday, 21 January 2022 any party that opposes the application for termination of the Agreement is to file with the Commission submissions and any accompanying material in support of its position. Such submissions and material will be served by the Commission upon the Employer.

[5] Should the Employer wish to file a response to any submissions received in accordance with [4] above, such submissions must be filed with the Commission by close of business Friday, 28 January 2022.

1. On 25 January 2022 the Applicant forwarded to my chambers an email in which the Australian Workers’ Union (AWU) advised that the AWU did not oppose the application. No  submissions or other materials were received by any party in opposition of the application for termination of the Agreement.

1. In the circumstances and based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant has complied with s.220(2) of the Act and that the termination was agreed to in accordance with s.222(1) of the Act. Further, having regard to the matters identified in ss.222 and 223 of the Act, I am satisfied that it is appropriate to approve the termination of the Agreement.

1. Accordingly, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination will operate from 2 February 2022.

DEPUTY PRESIDENT

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