Swinburne Student Union (SSU) Incorporated
[2022] FWCA 242
•28 JANUARY 2022
| [2022] FWCA 242 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Swinburne Student Union (SSU) Incorporated
(AG2022/149)
Swinburne Student Union Incorporated Collective Agreement 2015
| Educational services | |
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 28 JANUARY 2022 |
Application for termination of the Swinburne Student Union Incorporated Collective Agreement 2015.
This decision concerns an application made by Swinburne Student Union (SSU) Incorporated (SSU) to terminate the Swinburne Student Union Incorporated Collective Agreement 2015 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees covered by the Agreement that agreed to the termination. The Agreement is a single enterprise agreement. Its nominal expiry date was 1 October 2019.
The National Tertiary Education Industry Union (NTEU) is covered by the Agreement. On 25 January 2022, the NTEU advised my chambers that it did not wish to be heard in relation to the application to terminate the Agreement.
The relevant provisions of the Act are as follows:
“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.”
Based on the material provided to the Commission by the company, including the declarations of Ms Emma Hegerty and Mr Parampreet Mahal, I am satisfied that each of the requirements in s 223 of the Act has been met. I am satisfied that the SSU complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as all employees who cast a valid vote approved the termination. I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination. Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement. Pursuant to s 224, the day specified for the commencement of operation of the termination will be 4 February 2022.
An order giving effect to this decision will be issued separately in PR737854.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE417050 PR737856>
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