Smithbridge Australia Pty Ltd

[2013] FWCA 3760

[2013] FWCA 3760

FAIR WORK COMMISSION

DECISION

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

Smithbridge Australia Pty Ltd
(AG2013/1430)

SMITHBRIDGE AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2010

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 JUNE 2013

Application for termination of the Smithbridge Australia Pty Ltd Enterprise Agreement 2010.

[1] On 7 June 2013 Smithbridge Australia Pty Ltd filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Smithbridge Australia Pty Ltd Enterprise Agreement 2010 (“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:

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] Based on the material that is before me including the statutory declaration provided by the employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In this particular instance, the employer, represented by Mr Oliver Martin, Chief Financial Officer, declared, amongst other things, that:

• There have been no employees employed by Smithbridge Australia Pty Ltd since January 2013 and therefore no employees have been employed under the Smithbridge Australia Pty Ltd Enterprise Agreement 2010 since that time.

And that:

• Smithbridge Australia can therefore not request the employees covered by the agreement to terminate the agreement by voting for it in accordance with section 220 of the Fair Work Act 2009 (Cth) as there are no longer any employees to vote.

[5] Given the state of affairs, the usual requirements of s.223 cannot be discharged. But, this is not an impediment to the application being approved.

[6] Therefore, in accordance with s.224 of the Act the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

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