Stowe Australia Pty Limited
[2022] FWCA 291
•2 FEBRUARY 2021
| [2022] FWCA 291 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Stowe Australia Pty Limited
(AG2021/9022)
STOWE AUSTRALIA PTY LIMITED (BRISBANE CONSTRUCTION 1410) AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2019-2023
Electrical contracting industry | |
COMMISSIONER MATHESON | SYDNEY, 2 FEBRUARY 2021 |
Application for termination of the Stowe Australia Pty Limited (Brisbane Construction 1410) and CEPU Electrical Division Queensland Enterprise Agreement 2019-2023.
[1] Stowe Australia Pty Limited (Applicant) has made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Stowe Australia Pty Limited (Brisbane Construction 1410) and CEPU Electrical Division Queensland Enterprise Agreement 2019-2023 (Agreement).
[2] The Agreement is a single enterprise agreement. It was approved by Deputy President Colman on 17 June 2020. 1 The nominal expiry date of the Agreement is 31 July 2023.
[3] The Application was made concurrently with an application for the approval of the Stowe Australia Pty Limited (Brisbane Construction 1410) and CEPU Electrical Division Queensland Enterprise Agreement 2021 - 2023 (New Agreement). The Applicant sought to terminate the Agreement and replace it with the New Agreement.
Legislation
[4] The relevant provisions of the Act are as follows:
“220 Employers may request employees to approve a proposed termination of an enterprise agreement
(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.
(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.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
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 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
(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.
224 When termination comes into operation
If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”
Consideration – s.222 of the Act
Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?
[5] The employer covered by the Agreement is Stowe Australia Pty Limited. This is the same as the employer named in the Form F24 – Application for termination of an enterprise agreement by agreement (Form F24).
[6] Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant has standing to make the Application.
Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?
[7] The Application is accompanied by a Form F24A – declaration in support of termination of an enterprise agreement (Form F24A). I am satisfied that the Application is accompanied by the material required by the Fair Work Commission Rules 2013 and that the requirements of s.222(2) of the Act have been met.
Has the Application been made within the required timeframe per s.222(3)(a)?
[8] S.222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.
[9] It is declared in the Form F24A that the termination was agreed on 6 December 2021.
[10] The Commission’s records show the Application was filed on 16 December 2021 which means the application was made within 14 days after the termination was agreed to.
Consideration – s.223 of the Act
[11] I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.
S.220(2)
[12] S.223(a) of the Act requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.
Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?
[13] It is declared in the response to question 2.2 of the Form F24A that on 26 November 2021, the Applicant issued each of the employees covered by the Agreement with a ‘Notification of Termination’. A copy of this document was provided with the application.
[14] The ‘Notification of Termination’ sets out the time of vote and the voting method. It states that the secret ballot was to be conducted “on various sites by the CEPU and Stowe Australia Pty Limited”. The Commission raised concerns that this statement was not specific enough for employees to constitute notice of the place of the vote and more information was sought from the Applicant regarding this. The Applicant provided further information addressing the concern including emails distributed to employees where the place of vote was clearly identified.
[15] Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.
Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?
[16] The materials before the Commission indicate that employees were provided with a document explaining the differences between the Agreement and New Agreement and that meetings were conducted on 17 November 2021 on sites with employees affected by the proposed termination where the reasons for the termination and the effects of the termination on employees were explained.
[17] In all the circumstances, I am satisfied the steps taken by the Applicant satisfy the requirements of s.220(2)(b) of the Act.
Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?
[18] S.223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.
[19] It is declared in the Form F24 that 47 employees are covered by the Agreement, 46 cast a valid vote and 32 voted to approve the termination of the Agreement.
[20] Having considered the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.
Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
[21] Having considered the material before the Commission, I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.
Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)
[22] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is covered by the Agreement and emailed the Commission on 1 February 2022 confirming it has no objections in relation to the Application.
Conclusion
[23] Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.
[24] S.224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.
[25] In accordance with s.224 of the Act, the termination will come into effect seven days from the date of this decision, being 9 February 2022. Upon termination, the employees will be covered by the New Agreement ([PR737965]) which will operate from 9 February 2022.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<AE508309 PR737964>
1 [2020] FWCA 3177.
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