DECISION

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

Stowe Australia Pty Limited T/A Stowe Australia
(AG2020/536)

Electrical contracting industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 MARCH 2020

Application for termination of the Stowe Australia Pty Ltd - Newcastle and Central Coast Enterprise Agreement 2016.

[1] By an application dated 2 March 2020, Stowe Australia Pty Limited (Applicant) applied to the Fair Work Commission (Commission) to terminate the Stowe Australia Pty Ltd - Newcastle and Central Coast Enterprise Agreement 2016 (Agreement) under s 222 of the Fair Work Act2009 (Cth) (Act). The Agreement has a nominal expiry date of 14 June 2020.

[2] Section 223 of the Act sets out the conditions which must be met for an enterprise 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] The application was supported by a Statutory Declaration made by Mr Daniel Atkinson, Branch Manager of the Applicant, on 3 March 2020. Mr Atkinson declared, amongst other things, that 80 of the 85 employees covered by the Agreement cast a valid vote in relation to whether the Agreement should be terminated. 80 employees voted to terminate the Agreement.

[4] On 6 March 2020, I directed that:

“1. By 4pm on 11 March 2020, Stowe Australia Pty Ltd must provide a copy of these directions to all employees covered by the Stowe Australia Pty Ltd - Newcastle & Central Coast Enterprise Agreement 2016 (2016 Enterprise Agreement), together with a copy of the Form F24 and Form F24A filed by Stowe Australia Pty Ltd in the Fair Work Commission in support of its application to terminate the 2016 Enterprise Agreement.

2. By 4pm on 18 March 2020, any employee covered by the 2016 Enterprise Agreement who either opposes the termination of the 2016 Enterprise Agreement or wishes to inform the Fair Work Commission of their views in relation to the application to terminate the 2016 Enterprise Agreement, must file in the Commission any submissions, written statements and documents they wish to rely on in relation to the application to terminate the 2016 Enterprise Agreement.

3. By 4pm on 18 March 2020, Stowe Australia Pty Ltd must file in the Fair Work Commission a statutory declaration confirming compliance with direction 1 above.”

[5] On 12 March 2020, Mr Atkinson made a statutory declaration setting out the steps taken to comply with the directions made on 6 March 2020. On the basis of that statutory declaration, I am satisfied that the directions made on 6 March 2020 have been complied with.

[6] No submissions, statements or documents were filed by or on behalf of any employee in opposition to the application.

[7] Based on the material that is before the Commission, including the statutory declaration made by Mr Atkinson on 12 March 2020, I am satisfied that the requirements of s 223 of the Act have been met. Accordingly, I must approve the termination of the Agreement.

[8] In accordance with s 224 of the Act, the termination of the Agreement will come into effect at 5:00pm on 20 March 2020. An order [PR717690] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Stowe Australia Pty Limited, trading as Stowe Australia, applied for the termination of the Stowe Australia Pty Ltd – Newcastle and Central Coast Enterprise Agreement 2016. The respondent, the Building Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The dispute centred around the applicability of the agreement, particularly in light of changes in the company’s operations and the workforce's composition.

The primary legal issue the Commission needed to resolve was whether the changes in Stowe Australia's business operations and workforce justified the termination of the enterprise agreement. The applicant argued that the changes rendered the agreement obsolete, while the respondent contended that the changes did not fundamentally alter the nature of the business or the workforce to an extent that would warrant terminating the agreement.

The Commission examined the nature of the changes, including the impact on the workforce, the business operations, and the bargaining power dynamics. It found that while there had been some changes in the company's operations, they did not constitute a fundamental shift that would render the agreement inapplicable. The Commission also noted that the changes did not significantly alter the bargaining power between the parties. As a result, the application for termination was dismissed.

The Fair Work Commission decided that the changes in Stowe Australia’s business operations and workforce were not of a fundamental nature that would warrant the termination of the enterprise agreement. The application was dismissed, and the Stowe Australia Pty Ltd – Newcastle and Central Coast Enterprise Agreement 2016 remained in effect.

Stowe Australia Pty Limited T/A Stowe Australia

DECISION

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