Shire of Brookton

[2019] FWCA 934

[2019] FWCA 934

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Shire of Brookton
(AG2018/6922)

SHIRE OF BROOKTON AGREEMENT 2009

Local government administration
DEPUTY PRESIDENT BEAUMONT	PERTH, 19 MARCH 2019

Application for termination of the Shire of Brookton Agreement 2009.

[1] This is an application by the Shire of Irwin for the termination of the Shire of Brookton Agreement 2009 (the Agreement), which was lodged with the Fair Work Commission (the Commission) on 14 December 2018 (the Application).

[2] The Agreement is a collective agreement-based transitional instrument as defined under the Schedule 3 Item 2(5) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act).

[3] Item 15 of that Schedule provides that for the purposes of applying under the Fair Work Act 2009 (Cth) (the Act) to terminate such an instrument, a reference to an enterprise agreement is to be taken to include a collective agreement-based transitional instrument. Accordingly, the Applicant, the Shire of Brookton, is required to satisfy the requirements of Subdivision C of Division 7 of Part 2-4 of the Act in order for this collective agreement-based transitional instrument to be terminated.

Statutory framework

[4] The Transitional Act at Schedule 3, item 15 states:

15 Collective agreement-based transitional instruments: termination by agreement

Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[5] Sections 221, 222 and 223 of the Act relevantly provide as follows:

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(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.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If the employees of an employer, or each employer, covered 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.

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.

Consideration

[1] In the circumstances, I have decided to deal with the application on the papers without conducting a hearing.

[2] The Application to terminate the Agreement was made by the Applicant on 14 December 2018. The Application states that the termination was agreed to under s 221 of the Act on 18 November 2018, which was more than 14 days prior to the Application being lodged. It follows that s 222(3)(a) has not been satisfied.

[3] I must therefore consider whether, in all the circumstances, the Commission considers it fair to extend that period pursuant to s 222(3)(b).

[4] Consistent with procedural rules, the Form F28 Application was accompanied by a statutory declaration made by an appropriate person authorised by the Applicant; Mr Ian D’Arcy, the Chief Executive Officer of the Applicant (Mr D’Arcy). The statutory declaration provided the following reason for the delay:

Due to an ill child one employee was unable to complete their Statutory Declaration at the same time as the other employees but had agreed to terminate the agreement. Paperwork has been forwarded as soon as this declaration was completed.

[5] I observe this statement to be accurate, given the date the last employee statutory declaration was signed, and the date the application was filed with the Commission.

[6] I am satisfied in the circumstances that the time in which the Application can be made should be extended.

[7] Further, Mr D’Arcy’s statutory declaration states that all employees covered by the Agreement attended a presentation at the Shire of Brookton Administration Building on 13 November 2018 (the presentation). Mr D’Arcy confirmed that all relevant employees attended the presentation.

[8] A copy of this presentation was provided to the Commission in support of the application.

[9] The presentation explained that the Applicant intended to conduct a formal ballot to have the Agreement terminated. It outlined the differences between the current arrangements, and those that would be in place once the Agreement was terminated, the benefits and detriments to employees, the voting process, location, and specified the deadline for the ballot.

[10] While the presentation stated the deadline for the ballot was 13 September 2018, it was explained in correspondence to the Commission dated 28 February 2019, that this was a typographical error. Mr D’Arcy submitted a second statutory declaration which confirmed that the ballot concluded on 18 November 2019, and all but one statutory declaration was signed the following day. The final employee statutory declaration was signed on 6 December 2018.

[11] In these circumstances, I find that s 220(2) of the Act has been satisfied.

[12] It was confirmed that eight employees were covered by the Agreement, eight employees cast a valid vote and eight employees approved the termination of the Agreement. Accordingly, I am satisfied that the termination of the Agreement was agreed to pursuant to s 221(1) of the Act.

Conclusion

[13] In light of the above findings, ss 223(a) and (b) of the Act have been satisfied. I have no reason to believe that the employees have not agreed to the termination. I have had regard to all of the factors in s 223 of the Act and I am satisfied that all the requirements have been met. The termination will take effect from close of business today.

DEPUTY PRESIDENT

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