Rookwood General Cemeteries Reserve Land Manager T/A Rookwood General Cemetery
[2023] FWCA 2048
•10 JULY 2023
| [2023] FWCA 2048 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Rookwood General Cemeteries Reserve Land Manager T/A Rookwood General Cemetery
(AG2023/2192)
ROOKWOOD GENERAL CEMETERIES RESERVE LAND MANAGER ADMINISTRATIVE ENTERPRISE AGREEMENT 2021
| Clerical industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 10 JULY 2023 |
Application for termination of the Rookwood General Cemeteries Reserve Land Manager Administrative Enterprise Agreement 2021
On 30 June 2023, Rookwood General Cemeteries Reserve Land Manager (Applicant) made an application to the Fair Work Commission (Commission) to terminate the Rookwood General Cemeteries Reserve Land Manager Administrative Enterprise Agreement 2021 (Agreement) under s.222 of the Fair Work Act 2009 (Act). The Agreement has a nominal expiry date of 30 June 2023.
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.”
The application was supported by a Form F24 – declaration in support of termination of an enterprise agreement made on 30 June 2023 by Hayley Louise Smee, Executive Director, People Culture and Safety of the Applicant. Ms Smee declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether he wanted to approve the termination:
a)on 21 June 2023, the Applicant met with all employees covered by the Agreement to explain the proposal to terminate the Agreement. During this discussion, employees were informed of the effect of termination, including consequent coverage by the Clerks Private Sector Award 2020 for 11 of the 13 employees. The remaining two would become award/agreement free given the nature of their roles; and
b)on 23, 26 and 27 June 2023, the Applicant held individual meetings with each employee covered by the Agreement to further explain the application to terminate the Agreement, the impact it would have on the employee, and provide each employee with an opportunity to discuss this and ask any questions that they may have about the application, the process and any effect that it would have on them.
Ms Smee declared that employees were electronically informed of the voting method and date by an external service provider on 26 June 2023.
On 30 June 2023 voting commenced by way of electronic ballot. Voting concluded that same day. Ms Smee Jensen declared that on 30 June 2023, when votes were checked, that a majority of employees who cast a valid vote approved of the termination (12 employee covered by the Agreement cast a valid vote to approve termination of the Agreement).
On 10 July 2023, the Australian Workers’ Union, an employee organisation covered by the Agreement, communicated to my Chambers that it did not have a view in relation to the application.
Based upon the material that is before the Commission, including the Form F24A provided by the Applicant, the Commission is satisfied that the requirements of s.223(a) and (b) of the Act have been met. I am also satisfied, on the evidence before me, that there are no other reasonable grounds for believing that relevant employees have not approved the termination (s.223(c)) and that it is appropriate to approve the termination of the Agreement.
In accordance with s.223 of the Act, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination of the Agreement will come into effect from the date of this Decision (i.e. 10 July 2023).
DEPUTY PRESIDENT
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