Shire of Irwin

[2018] FWCA 884

[2018] FWCA 884

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Shire of Irwin
(AG2017/6374)

SHIRE OF IRWIN (OPERATIONAL) ENTERPRISE AGREEMENT 2006

Local government administration
DEPUTY PRESIDENT BEAUMONT	PERTH, 8 FEBRUARY 2018

[1] This is an application by the Shire of Irwin for the termination of the Shire of Irwin (Operational) Enterprise Agreement 2006 (Agreement), which was lodged with the Fair Work Commission (Commission) on 18 December 2017 (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 Irwin, 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 FW 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

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

[7] The application to terminate the Agreement was made by the Applicant on 18 December 2017 pursuant to s.222 of the Act. The Application states that the termination was agreed to under s.221 of the Act on 5 December 2017, which was 13 days before the Application was lodged. It follows that ss.222(3)(a) has been satisfied.

[8] Consistent with procedural rules, the Form F28 Application was accompanied by a statutory declaration made by an appropriate person authorised by the Applicant, Mr Mark Jones, Supervisor Operations of the Shire of Irwin (Mr Jones) 1.

[9] Mr Jones’ Statutory Declaration states that all employees covered by the Agreement attended various meetings, and received a memorandum from the Chief Executive Officer, Mr Darren Simmons, on 5 December 2017 (the Memorandum).

[10] The meetings were as follows:

● 28 November 2017 at the Operations Depot to provide overview of proposal and opportunity for questions and answers;

● 4 December 2017 at the Operations Depot to provide overview of proposal and opportunity for questions and answers; and

● 5 December 2017 at the Operations Depot to provide overview of proposal and opportunity for questions and answers, and ballot held.

[11] The Memorandum explained that the Applicant intended to conduct a formal ballot to have the Agreement terminated. It outlined the voting process, location and specified the deadline for the ballot, namely 5 December 2017.

[12] In addition, the Memorandum clarified a number of commitments that had been made during the meetings regarding what the Applicant was willing to honour and include in employment contracts should the ballot indicate agreement to terminate the Agreement.

[13] It was confirmed that the Memorandum was provided to each affected employee. The Memorandum was discussed with the employees and any questions raised were answered. In these circumstances I find that ss.220(2) of the Act has been satisfied.

[14] 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 ss.221(1) of the Act.

[15] The Australian Municipal, Administrative, Clerical and Services Union (ASU) was covered by the Agreement. By letter of 8 January 2018, my Chambers informed the ASU of the Application. By letter of 12 January 2018, the ASU noted that it had no objections to the cancellation of the Agreement.

Conclusion

[16] 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

 1 Subsection 222(2) of the Act.

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