Stowe Australia Pty Ltd trading as Stowe Australia

[2019] FWCA 7832

[2019] FWCA 7832

The attached document wholly replaces the document previously issued with the code [2019] FWC 7772 on 14 November 2019 to correct document referencing.

Associate to Deputy President Kovacic

Dated 15 November 2019.

[2019] FWCA 7832

FAIR WORK COMMISSION

DECISION

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

Stowe Australia Pty Ltd trading as Stowe Australia
(AG2019/4102)

STOWE AUSTRALIA PTY LTD - CANBERRA DIVISION SINGLE ENTERPRISE AGREEMENT 2016

Electrical contracting industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 15 NOVEMBER 2019

Application for termination of the Stowe Australia Pty Ltd - Canberra Division Single Enterprise Agreement 2016 - evidentiary basis established for approval of termination - application granted - enterprise agreement terminated.

[1] This decision concerns an application made on 28 October 2019 for termination of an enterprise agreement known as the Stowe Australia Pty Ltd – Canberra Division Single Enterprise Agreement 2016 (the Agreement) 1. The application was made by Stowe Australia Pty Ltd T/A Stowe Australia (Stowe Australia – the Applicant) pursuant to s.222 of the Fair Work Act 2009 (the Act).

[2] The Agreement is a single enterprise agreement and has a nominal expiry date of 30 June 2020.

[3] A telephone hearing was held on 11 November 2019. Ms Theresa Moltoni OAM of IRIQ Pty Ltd T/A IRQ Law appeared with permission for the Applicant.

[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.
Multi-enterprise agreement
(2) …

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 of the issues

[5] Before turning to consider each matter specified in s.223 of the Act, I note that:

● the Applicant is covered by the Agreement and therefore has standing under s.222(1) to make the application;

● the application was made within 14 days after the termination was agreed to; and

● the Applicant has provided the Fair Work Commission (the Commission) with a statutory declaration by Mr Mark Decker, the Applicant’s ACT Branch Manager.

[6] In his statutory declaration Mr Decker declared inter alia that all employees covered by the Agreement were provided with a Ballot Notice and a copy of the Agreement on 15 October 2019, adding that the Ballot Notice stated that the reason for seeking termination of the Agreement was that a replacement agreement which had been approved by the Commission would not take effect until either the Agreement was terminated or passed its nominal expiry date. Mr Decker further declared that:

● the Ballot Notice provided the date, time and method by which the vote would occur, as well as instructions on how to cast a valid vote;

● employees eligible to vote on the proposed termination but who did not attend the meeting at which the Ballot Notice was given to employees were sent an electronic copy of the documents via email; and

● the vote on termination of the Agreement was held on 25 October 2019, with 27 of 29 employees covered by the Agreement casting a valid vote to approve termination of the Agreement.

[7] By way of background, the replacement agreement, the Stowe Australia Pty Ltd – Canberra Division Enterprise Agreement 2019 2, was approved by the Commission on 31 July 2019 and has a nominal expiry date of 31 July 2023. A comparison of the replacement agreement against the Agreement indicates that the rates of pay in the replacement agreement are higher and that the replacement agreement is generally very similar in terms to the Agreement.

[8] At the telephone hearing on 11 November 2019, Ms Moltoni in response to a question from the Commission provided further context regarding the application to terminate the Agreement. Specifically, Ms Moltoni advised that given the imminent expiry of the Agreement in June 2020, the Applicant negotiated a replacement agreement as it considered its prospects of winning government work would be enhanced were it to have in place an enterprise agreement of greater duration. Beyond that, Ms Moltoni also stated that:

● employees had been informed of the Applicant’s intention to terminate the Agreement during bargaining for the replacement agreement; and

● the replacement agreement included several changes which were beneficial to employees when compared to the Agreement and did not include any changes that were disadvantageous to employees.

[9] I turn now to consider the matters set out in s.223 of the Act.

s.223(a) The FWC is satisfied that each employer covered by the agreement complied with subsection 220(2)

[10] Having regard to Mr Decker’s statutory declaration, I am satisfied the Applicant took reasonable steps to notify employees of the time and place at which voting would occur and the voting method that would be used. Further, given that employees were provided with a copy of the Ballot Notice on 15 October 2019 and that the vote did not occur until 25 October 2019, I am also satisfied that the Applicant gave employees a reasonable opportunity to decide whether they wanted to approve the proposed termination of the Agreement.

s.223(b) The FWC is satisfied that the termination was agreed to in accordance subsection 221(1)

[11] Based on Mr Decker’s statutory declaration, I am satisfied that the termination of the Agreement was agreed to by a majority of employees.

s.223(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination

[12] I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to its termination. A key consideration in that regard is that the replacement agreement is more beneficial to employees when compared to the Agreement.

s.223(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

[13] There are no employee organisations covered by the Agreement.

Conclusion

[14] Having considered each of the matters set out in s.223 of the Act, the termination of the Stowe Australia Pty Ltd – Canberra Division Single Enterprise Agreement 2016 [AE419644] is approved and operates from the date of this decision (14 November 2019).

 1   AE419644

 2   AE504505

Printed by authority of the Commonwealth Government Printer

<AE419644  PR714340>