RND Crewing Pty Ltd

[2023] FWCA 1437

[2023] FWCA 1437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

RND Crewing Pty Ltd

(AG2023/995)

RNDC AND MUA EBA 2021 COCKBURN CEMENT LIMITED (CCL) – OWEN ANCHORAGE SHELL SAND DREDGING

Dredging industry
COMMISSIONER HUNT	BRISBANE, 18 MAY 2023

Application for termination of the RNDC and MUA EBA 2021 Cockburn Cement Limited (CCL) – Owen Anchorage Shell Sand Dredging

1. On 6 April 2023, RND Crewing Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the RNDC and MUA EBA 2021 Cockburn Cement Limited (CCL) – Owen Anchorage Shell Sand Dredging (the Agreement).

1. The Agreement covers the Employer. I am therefore satisfied that the Employer is an employer covered by the Agreement, for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act and can therefore make this application.

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. Section 223 provides as follows:

“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 application was supported by a Form F24A statutory declaration made by Mr Will Price, Area Manager – Australia / New Zealand of the Employer, which declared, amongst other things, that of the three employees covered by the Agreement, two employees approved the termination of the Agreement.

1. On 1 February 2023, the Employer emailed each employee covered by the Agreement, providing an explanation why the Employer was proposing to terminate the Agreement, being that it was hopeful it would be replaced by a new, proposed agreement titled RND Crewing Pty Ltd Agreement 2023 (2023 Agreement) to increase employees’ rates and competitiveness in the job market. A summary of the differences between the Agreement and 2023 Agreement was provided to relevant employees.  

1. The 2023 Agreement has recently been approved and comes into operation on 22 May 2023.[1]

1. In the decision to approve the Agreement the subject of this application, it is noted that the Agreement covers the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). Therefore, s.223(d) of the Act is a relevant factor.

1. On 9 May 2023, I sought the views of the CFMMEU as to the termination of the Agreement. On 15 May 2023, the CFMMEU advised that it does not oppose the termination of the Agreement.

1. In consideration of the material before me, including the statutory declaration and the supporting material, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The Employer has requested that the termination of the Agreement only be made after the 2023 Agreement comes into operation.  I consider that to be an appropriate course of action to ensure employees are, at all times, covered by an agreement.   

1. Having regard to s.227 of the Act, the termination date will be the date that the 2023 Agreement commences, being 22 May 2023.

COMMISSIONER

[1] [2023] FWCA 1384.

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