SDF Electrical Pty Ltd

[2021] FWCA 7296

[2021] FWCA 7296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

SDF Electrical Pty Ltd
(AG2021/8768)

SDF ELECTRICAL PTY LTD AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2019 - 2023

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 24 DECEMBER 2021

Application for termination of the SDF Electrical Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2019 - 2023

[1] On 7 December 2021, SDF Electrical Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the SDF Electrical Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2019 - 2023 (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. 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.”

[3] The application was supported by Form F24A statutory declarations made by Mr Steven Flanagan, Director of the Employer, which declared, amongst other things, that the employees covered by the Agreement were notified of the time and place of the vote, that the vote would be taken by show of hands, and that of the 46 votes cast, 45 employees approved the termination of the Agreement. The employees were voting almost simultaneously on whether to approve a new agreement of the same name as the Agreement the subject of this decision. The vote to approve a new agreement was successful.

[4] On the basis that the vote occurred on one morning across three different work sites, and Mr Flanagan was not present at all three work sites, I sought further information directly from the three union organisers from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to confirm details of the vote. Having reviewed the statements of the three organisers, each organiser having been present at one of the three relevant work sites, I am satisfied that the employees covered by the Agreement understood that they were voting to terminate the Agreement. A separate vote was made whether to approve the new agreement.

[5] In consideration of the material before me, including the statutory declaration and the evidence from the CEPU organisers, 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.

[6] To ensure the employees remain covered by an enterprise agreement, the termination of the Agreement will take effect on 31 December 2021. This is the date a new agreement, also titled the SDF Electrical Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2019 - 2023, will become operative pursuant to my decision in [2021] FWCA 7297.

COMMISSIONER

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