S.C.O.P.E Inc T/A S.C.O.P.E Inc

[2020] FWCA 3835

[2020] FWCA 3835

FAIR WORK COMMISSION

DECISION

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

S.C.O.P.E Inc T/A S.C.O.P.E Inc
(AG2020/1704)

S.C.O.P.E. INC. ENTERPRISE AGREEMENT 2011

Social, community, home care and disability services
COMMISSIONER BOOTH	BRISBANE, 22 JULY 2020

Application for termination of the S.C.O.P.E. Inc. Enterprise Agreement 2011.

[1] An application has been made by S.C.O.P.E Inc T/A S.C.O.P.E Inc (S.C.O.P.E) under s.222 of the Fair Work Act 2009 (the Act) to terminate the S.C.O.P.E. Inc. Enterprise Agreement 2011 (the Agreement). The Agreement commenced from 26 August 2011, with a nominal expiry date of 18 August 2015.

[2] The application was supported by a Form F24A statutory declaration made by Mr John Hunter, General Manager. Mr Hunter declared, among other things, that 91 employees covered by the Agreement were notified of the time and place of the vote and that of the 68 votes cast, 58 employees approved the termination of the Agreement.

[3] There are no employee organisation or employee organisations covered by the Agreement.

Relevant Legislation

[4] The relevant sections for consideration are ss.219 to 223 of the Act, produced below:

“Section 219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

219(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer – the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers – all of the employers and the employees covered by the agreement.

Termination has no effect unless approved by the FWC

219(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.

…..

Section 220 Employers may request employees to approve a proposed termination of an enterprise agreement

220(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

220(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

220(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

Section 221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

221(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

…..

Section 222 Application for approval

Application for approval

222(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

222(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

222(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.

Section 223 When the FWC must approve a termination of an enterprise agreement

223 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

[5] Mr Hunter’s Form F24A outlined the steps taken by S.C.O.P.E to demonstrate that it met the requirements of the Act that all employees covered by the Agreement were given a reasonable opportunity to decide they wanted to approve the termination. Appended to the Form F24A statutory declaration made by Mr Hunter was a series of emails Mr Hunter declared was sent to all employees covered by the Agreement between 27 May 2020 to 11 June 2020.

[6] On 27 May 2020, an email from Ms Rebecca Russell, Manager Human Resources, was sent to employees advising of S.C.O.P.E’s intention to hold a vote to terminate the Agreement. The email also explained the impact of termination, being moving to the Social, Community, Home Care and Disability Services Award (the Award), and outlined some of the differences between the Agreement and Award as follows:

“The Social, Community, Home Care and Disability Services Award (SCHADS) is more closely aligned with NDIS payments than an EA so it is a better and fairer award framework for what we do. In most cases, if not all, moving to the SCHADS will result in more money and a loading for afternoon and weekend shifts. It will also mean outs teams will receive equal pay and conditions to others from our industry.”

[7] On 2 June 2020, Ms Russell, on behalf of Mr Hunter, sent a further email to all employees advising the broads terms of the proposed termination process. Employees were also notified that information sessions would be held by S.C.O.P.E on 5 June 2020 and 10 June 2020.

[8] Attached to the email was a document six pages in length titled “Social, Community, Home Care and Disability Services Industry Award 2010 (Award) vs. the S.C.O.P.E. Inc. Enterprise Agreement 2011 (Enterprise Agreement) - Answers to the Frequently Asked Questions”. The document contained 13 frequently asked questions with answers, and two scenarios that compared Agreements rates and Award rates.

[9] On 9 June 2020, Ms Russell sent an email to all employees containing a comparison of the wages under the Agreement and Award. Employees were also reminded that an additional face to face meeting with Mr Hunter and Ms Russell would take place on 10 June 2020. In this email, employees were advised of the time, place and voting method to be used. The email provided:

“On Friday 12th June, voting will commence at Burpengary at 6.30am and conclude at 3.30pm. It will be conducted by an independent returning officer in the sun room of Tandara Clinic, our newest facility immediately on your left as you enter the gates. Please ensure you bring either your S.C.O.P.E employee card or other ID in order to receive a ballot paper.”

[10] On 11 June 2020, a reminder email was sent to all employees advising of the time, date and place of voting. It is necessary to set out the email in full:

“Good Morning All,

Confirming details for voting on moving away from the current Enterprise Agreement over to the SCHADS Award. Personal votes cast 12 June 2020 only will be valid.

Voting will be held at the following 2 locations

1) Burpengary Tandara Cline

30-54 Aquatic Centre Drive, Burpengary 4505 6:30 am - 3:00pm

Bring ID for Returning Officer

2) Woombye

9 Moorhouse Rd, Woombye 4559

1:30pm - 2:30pm

Bring ID for Returning Officer

Votes will be counted by Queensland Security Solutions at 3:30pm Friday 12 June 2020.

Kind regards,

Rebecca Russell

Manager Human Resource”

(a) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

Consideration

[11] The conditions which must be met for an agreement to be terminated are set out in ss.220-223 of the Act.

Section 220

[12] I am satisfied that there were 91 employees eligible to vote to terminate the Agreement.

[13] Having reviewed the emails provided by S.C.O.P.E, I am satisfied that S.C.O.P.E took all reasonable steps to notify employees the time and place at which the vote will occur and the voting method that will be used.

[14] All employees were provided with notice of the ballot, documents answering frequently asked questions and providing a comparison between the Award and the Agreement and invited to attend face-to-face information session on two separate occasions.

[15] Accordingly, I am satisfied that employees were provided with a reasonable opportunity to decide whether they want to approve the proposed termination.

Section 221(a)

[16] The vote was 58 for, and 10 against, termination of the Agreement, resulting in 68 of the eligible employees voting.

Section 223(a)

[17] Section 223(a) is satisfied, noting paragraphs [12] to [15].

Section 223(b)

[18] I am satisfied that s.221(1) has been met as the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Section 223(c)

[19] I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

Section 223(d)

[20] As there were no employee organisations covered by the Agreement, this is a neutral consideration.

Conclusion

[21] Under ss.223 and 224 of the Act, and for the reasons set out above, the Agreement is terminated and the termination is effective from the date of this decision.

COMMISSIONER

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