Swinburne Bookshop Co-operative

[2022] FWCA 3280

[2022] FWCA 3280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Swinburne Bookshop Co-operative

(AG2022/3767)

Swinburne Bookshop Co-operative Enterprise Agreement 2011

Educational services
COMMISSIONER BISSETT	MELBOURNE, 28 SEPTEMBER 2022

Application for termination of the Swinburne Bookshop Co-operative Enterprise Agreement 2011

1. Swinburn Bookshop Co-operative Limited (the employer) has applied to terminate the Swinburne Bookshop Co-operative Enterprise Agreement 2011 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (FW Act).

1. The application was made following a vote of employees covered by the Agreement that agreed to the termination on 7 September 2022.

1. Section 223 of the FW Act States:

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.

1. I am satisfied on the basis of the material filed, including a statutory declaration of the Managing Director of the employer, that the employer has complied with the requirements of s.220(2) of the FW Act.

1. I am satisfied that the termination was agreed to in accordance with s.221(1) of the FW Act in that the majority of employees (in this case, all) who cast a vote voted in favour of the termination. Further, I am satisfied that there are no grounds for believing the employees have not agreed to the termination.

1. I note that the National Tertiary Education Union (NTEU), an employee organisation covered by the Agreement, was asked by the Commission to provide its views on the application and provided a response on 15 September 2022. In its response, the NTEU indicated an objection to terminating the Agreement and requested to be heard in relation to the Application. A Mention was listed for 20 September 2022. On the morning of the Mention, the NTEU notified the Commission that it no longer pursued the objection.

1. At the Mention I sought from the Respondent further information in relation to what information was provided to employees of the effect of the termination of the Agreement such that they were able to make an informed decision as to whether they agreed to the termination. Before considering this material a number of things should be noted. Firstly, of the 11 employees covered by the Agreement 10 voted in favour of the termination (out of 10 who cast a valid vote). Of these 10 employees 5 are employed on a casual basis (covered by an Agreement that limits casual employment to 16 weeks). Of the 5 ongoing employees 3 will depart on a redundancy package as specified in the Agreement in mid-October 2022. The employer has indicated that, in order to ensure employees leaving on redundancy do receive the entitlement under the Agreement the employer is content for the termination to take effect the day after those employees depart. If the Agreement is not terminated it appears that casual employees will no longer be engaged because of the time limit in the Agreement on their engagement.

1. At least 2 meetings were held with employees before they were asked to vote on whether they agreed to terminate the Agreement. I am satisfied that critical changes arising from the termination of the Agreement were highlighted to employees (changes in redundancy and changes in casual employment) prior to them being asked to vote on the question of termination. Given the small cohort of employees covered by the Agreement, I am satisfied that all had access to the summary document produced by the employer. While I acknowledge a range of other changes that will come about by termination of the Agreement I am satisfied that employees have agreed to termination of the Agreement. I further note an indication for the employer to the employees that bargaining for a new agreement may occur in 2023.

1. The employer under the Agreement is a co-operative. It is run by a Board of Management who wish to continue running the co-operative but consider the current agreement no longer “fit for purpose”. The future of the co-operative is at issue should the Agreement not be terminated.

1. In these circumstances I am satisfied that the Agreement should be terminated. An order to this effect will be issued separately to this decision.[1] In accordance with s.224 of the FW Act the termination will operate from 14 October 2022.

COMMISSIONER

[1] PR746040.

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<AE896021  PR746039>