Swan Hill Bus Lines Pty Ltd
[2023] FWCA 510
•7 MARCH 2023
| [2023] FWCA 510 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Swan Hill Bus Lines Pty Ltd
(AG2023/195)
Swan Hill Bus Lines (SA) Enterprise Agreement 2019
| Passenger vehicle transport (non-rail) industry | |
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 7 MARCH 2023 |
Application for termination of the Swan Hill Bus Lines (SA) Enterprise Agreement 2019
On 2 February 2023, Swan Hill Bus Lines Pty Ltd (the Applicant) lodged an application for termination of the Swan Hill Bus Lines (SA) Enterprise Agreement 2019[1] (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act).
The Application was accompanied by a statutory declaration of Mr Simon Johnson, Accounts and Administration Manager of the Applicant.
On 3 February 2023, correspondence was sent from my Chambers requiring that the Applicant file with the Commission submissions demonstrating how the effect of the termination of the Agreement was explained to employees.
On 14 February 2023, I conducted a conference in the matter. At the conference I sought further detail as to what information had been provided to employees about the effect the termination of the Agreement would have on their employment conditions. The Applicant submitted the existing employees were advised that their above Award wages would be maintained, and those wages would increase annually in accordance with the minimum wage determination of this Commission. The Applicant proffered an undertaking to this effect.
On 23 February 2023, correspondence was sent from my Chambers to Mr Johnson requesting the undertaking proffered during the conference of 14 February 2023 be provided by way of a statutory declaration. Mr Johnson complied with the request, and on 24 February 2023 filed a statutory declaration which provided as follows:
“…
2. The basis upon which the workforce, who voted overwhelmingly to terminate the Enterprise Agreement on 20 January 2022, was on the basis that the current higher rates of pay would remain and be increased in accordance with the minimum wage determination of the Fair Work Commission.
3. It is the intention of the Applicant to honour this commitment to its workforce.
4. the Current rates of pay for the employees is as follows:
* Casual charter - $34.22per hour
* Casual cleaner - $28.93 per hour
* Casual school bus driver - $31.34 per hour
* Permanent mechanic - $27.79 per hour
…”
The Legislation
An application for termination of an agreement made pursuant to s.222 must be approved where the conditions set out in s.223 are satisfied. Section 223 provides as follows:
“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.”
Consideration
The material filed by the Applicant demonstrates that employees were advised that following termination of the Agreement they would be covered by the Passenger Vehicle Transportation Award 2020 (the Award). Employees were also advised that despite the termination of the Agreement, they would continue to be paid above the Award rates, with increases in line with the minimum wage determination.
On the basis of the materials before me, I am satisfied that the employees were given an opportunity to decide whether they wanted to approve the termination in accordance with s.223(a). The employer met with the employees on 26 September 2022 and 5 December 2022 in relation to the termination of the Agreement. The employees were provided with a notice of vote on 13 January 2023, advising that a vote would be conducted by ballot on 20 January 2023 at the Swan Hill Depot.
The termination was agreed to in accordance with s.221(1) on 20 January 2023, when a majority of employees voted to approve the termination of the Agreement. I am satisfied that there are no reasonable grounds to believe that the termination was not genuinely agreed to. Accordingly, the requirements of sub-ss.223(b) and (c) have been met.
As there is no employee organisation covered by the Agreement, s.223(d) is not relevant to my consideration.
I have considered the materials before me and I am satisfied that each of the requirements in ss.222 and 223 of the Act have been met. In the circumstances I am satisfied that the Agreement should be terminated. In accordance with s.224 of the Act the termination will operate from the date of this decision. An order to this effect will be issued separately to this decision.
COMMISSIONER
[1] AE505417.
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<AE505417 PR750711>
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