Stowe Australia Pty Limited

[2021] FWCA 7203

[2021] FWCA 7203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Stowe Australia Pty Limited
(AG2021/8717)

STOWE AUSTRALIA PTY LIMITED (BRISBANE CLIENT SERVICES 1405) AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2019-2023

Electrical contracting industry
COMMISSIONER SPENCER	BRISBANE, 24 DECEMBER 2021

Application for termination of the Stowe Australia Pty Limited (Brisbane Client Services 1405) and CEPU Electrical Division Queensland Enterprise Agreement 2019-2023.

[1] Stowe Australia Pty Limited (the Applicant) filed an application under s.222 of the Fair Work Act 2009 (the Act). The application is for the termination of the Stowe Australia Pty Limited (Brisbane Client Services 1405) and CEPU Electrical Division Queensland Enterprise Agreement 2019-2023 (the current Agreement). The Agreement’s nominal expiry date is 31 July 2023.

[2] The Applicant made this application to terminate the current Agreement, in conjunction with an application to approve the Stowe Australia Pty Limited (Brisbane Client Services 1405) and CEPU Electrical Division Queensland Enterprise Agreement 2021 – 2023 (new Agreement). The Applicant sought to terminate the current Agreement and replace it with the new Agreement.

[3] 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.”

[4] Mr Aaron Gregg, Client Services Manager of the Applicant, provided a statutory declaration in support of the application to terminate the Agreement. In his statutory declaration, Mr Gregg stated that the Applicant issued each of the employees covered by the Agreement with a Notification of Termination, which advised that the Applicant was seeking to terminate the Agreement as it was proposing an alternative Agreement. The Notification of Termination advised each of the employees of discussion meetings that would take place on 17 and 18 November 2021 and set out the date and method of voting. A copy of the Notification of Termination was provided to the Commission.

[5] Mr Gregg also stated that an explanation document setting out the differences between the proposed new Agreement and the Agreement (of which termination had been agreed) was provided to employees. This document also explained that this Agreement would be terminated and replaced with the new Agreement.

[6] Mr Gregg stated that the Applicant ensured that all employees understood that in order for the Proposed Agreement to come into effect, the Current Agreement needed to be terminated. It was also set out in this document that employees under the age of 18 years were advised that they could bring a parent, guardian or representative to the discussion meetings. Further, employees were advised to contact their supervisor if there were any special needs that needed to be explained.

[7] Mr Gregg confirmed in his declaration that discussion meetings were held where the Applicant explained to each of the attending employees the reasons for the termination and the effect of the termination on each of the employees on 17 and 18 November 2021.

[8] Following the scheduled meetings, Mr Gregg confirmed that the vote took place on 24 November 2021, whereby the vote was conducted by a third party company, CiVS, which subsequently issued the Applicant with a declaration of result. Mr Gregg stated that the declaration of result confirmed that a majority of the employees who cast a vote, agreed to the termination of the Agreement. The results of the declaration of result, confirmed that 56% of employees voted in favour of terminating the Agreement. I am satisfied that a majority of employees agreed to the termination of the Agreement, in accordance with s.223(1) of the Act.

[9] The application for termination of the current Agreement was made on 6 December 2021, which is less than 14 days after the vote was held to terminate the Agreement, which occurred on 24 November 2021. This is in accordance with s.222(3)(a) of the Act.

[10] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being a party to the Agreement, were contacted and their views were sought in relation to the application. The CEPU confirmed through correspondence, that they supported the termination of the Agreement.

[11] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[12] In accordance with s.224 of the Act, the decision will come into effect seven days from the date of this decision, being 31 December 2021. Upon termination, the employees will be covered by the new Agreement (PR736691), which comes into effect on 31 December 2021.

COMMISSIONER

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