Sunshine Refuellers Pty Ltd T/A Refuel International
[2024] FWCA 632
•15 FEBRUARY 2024
| [2024] FWCA 632 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement
Sunshine Refuellers Pty Ltd T/A Refuel International
(AG2023/5462)
REFUEL INTERNATIONAL WORKSHOP ENTERPRISE AGREEMENT 2021
| Manufacturing and associated industries | |
| COMMISSIONER PERICA | MELBOURNE, 15 FEBRUARY 2024 |
Application for termination of the Refuel International Workshop Enterprise Agreement 2021
On 22 December 2023, Ms. Alison Chetcuti, the Safety and Compliance Manager of Sunshine Refuellers Pty Ltd (the Applicant) filed the application together with the Form F24A declaration (the Application Documents) to apply under s 222 of the Fair Work Act 2009 for the termination of the Refuel International Workshop Enterprise Agreement 2021 (the Agreement), an enterprise agreement which has not passed its nominal expiry date. Clause 7 of the Agreement provides the nominal expiry date is 24 May 2024.
On 29 December 2023, I issued directions for the Applicant to file material in support of its application, serve a copy of the directions to any employee or employee organisation covered by the Agreement and for my Chambers to be notified of any objection.
I issued further directions on 29 January 2024 for additional material from the Applicant and invited the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) to provide any material in reply.
Legislation
Sections 220 to 224 of the Act are relevant this application.
“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) If the employees of each employer covered by a multi-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 of each individual employer who cast a valid vote have approved 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.”
Evidence on the opportunity to decide, the vote and other matters
Discussion of a new employment model
On 31 October 2023, The Borg Family Trust purchased the Applicant. The Borg Family Trust also owns Fuelcraft Pty Ltd, trading as Liquip Victoria. Liquip Victoria employs seventy-seven employees under individual contracts underpinned by the Manufacturing and Associated Industries and Occupations Award 202 [MA000010] Award (the Award).
Shortly after the purchase of the Applicant, during a discussion between the employees of the Applicant and senior management, some employees indicated they were interested in exploring the Liquip model of employment, that is, being employed on individual contracts underpinned by the Award.
On 30 November 2023 and 7 December 2023, presentations were given to all employees regarding the terms and conditions that would be available under the proposed new employment model. The slide presentations dealt with the proposed terms and conditions that would be available under the contracts. During the presentations employees were given an opportunity to ask questions. After the presentations, all employees were offered an opportunity to discuss their individual pay and entitlement under this new arrangement. The Applicant provided a witness statement of Mr. Tremaine Pene, of one of its employees who confirmed these arrangements and stated: “The majority of entitlements offered were better than what the EBA was.”
Events leading up to the ballot
During a meeting with workshop staff on 8 December 2023, the employees present indicated they wished to vote to terminate the Agreement and move onto individual contracts underpinned by the Award.
On that same day, a notice was posted throughout the workplace entitled “Notice of Upcoming Vote.” It notified that “all employees currently on [the Agreement] will be given an opportunity to vote to have [the Agreement] removed.” It notified that the vote closed on Friday 22 December.
Ballot papers were prepared and individually numbered. The ballot papers were placed inside a sealed envelope, another envelope was provided inside that sealed envelope for the ballot to be inserted once the ballot had been completed. As ballot papers were handed out to individuals. Each of them signed that they had received the ballot. Two employees were overseas doing an installation for a client at the time the ballot papers were issued. On the request of those employees, ballot papers were emailed to them by the Workshop Manager.
A worker was nominated by the workshop staff to attend Liquip's Office on Thursday 21 December 2023 to act as scrutineer of the ballot. On 22 December 2023, it was confirmed that all twenty-three ballot envelopes had been received. The nominated scrutineer then proceeded to open each envelope. The result was twenty-two in favour of termination and one against. On the day the ballot count was completed, the Applicant made this Application.
Mr. Pene, in his witness statement, said the following about the voting process: “I found the process to be straightforward and had a clear understanding.”
On 29 December 2023, I directed the Applicant to serve the application documents and a copy of the directions to any employee or employee organisation covered by the Agreement. Each employee and the AMWU were forwarded copies of the application documents and a copy of the directions. Those direction also required if any employee or employee organisation opposed the Application, a submission should be made to my Chambers by e-mail by 5:00 PM on 17 January 2024. No submissions were received.
Conclusions
Based on the material filed in this matter, I find:
· The twenty-three employees were given a reasonable opportunity to decide whether they wanted to approve the proposed termination. Accordingly, s 220(2) of the Act was complied with.
· All but one of the twenty-three employees cast a valid vote in favour of the terminating the Agreement, which was a single enterprise agreement, as required by s 221(1) of the Act.
· The application was made on 22 December 2023, following the counting of the ballots for the termination of the agreement. This was within the fourteen days prescribed by s 222(3)(a) of the Act.
· On the material before me, and on the failure of any of the twenty-three employees to take up the invitation to express their views on the termination, I consider there are no reasonable grounds for believing the employees had not agreed to the termination under s 223(c).
· The AMWU has been given an opportunity to express its views in relation to this application and has not done so, for the purposes of s 223(d).
I am therefore satisfied that each of the requirements of ss 220, 221, 222 and 223 of the Act have been met and that it is appropriate to terminate the Agreement. The termination will come into effect from the date of this decision. An order[1] terminating the Agreement will issued separately.
COMMISSIONER
[1] PR771506
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