Tamworth Community College Incorporated T/A Tamworth Community College
[2023] FWCA 1043
•11 APRIL 2023
| [2023] FWCA 1043 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Tamworth Community College Incorporated T/A Tamworth Community College
(AG2023/690)
TAMWORTH COMMUNITY COLLEGE 2012 EMPLOYEE AGREEMENT
| Educational services | |
| COMMISSIONER P RYAN | SYDNEY, 11 APRIL 2023 |
Application for termination of the Tamworth Community College Inc 2012 Employee Collective Agreement
On 16 March 2023, Tamworth Community College Incorporated (Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (FW Act) to the Fair Work Commission (Commission) to terminate the Tamworth Community College Inc 2012 Employee Collective Agreement (Agreement).
The Agreement is a single enterprise agreement. The nominal expiry date of the Agreement is 30 June 2015.
There are 15 employees covered by the Agreement and the underpinning modern award is the Educational Services (Post-Secondary Education) Award 2020 (Modern Award).
Relevant Legislation Provisions
The relevant provisions of the FW 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.
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 – s.222 of the FW Act
Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?
The employer covered by the Agreement is Tamworth Community College Incorporated. This is the same as the employer named in the Form F24 – Application for termination of an enterprise agreement by agreement (Form F24).
Having considered the materials before me, I am satisfied that the application was made by an employer covered by the Agreement and that the Applicant has standing to make the application.
Is the application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the FW Act?
The application is accompanied by a Form F24A – declaration in support of termination of an enterprise agreement (Form F24A). I am satisfied that the application is accompanied by the material required by the Fair Work Commission Rules 2013 and that the requirements of s.222(2) of the FW Act have been met.
Has the application been made within the required timeframe per s.222(3)(a)?
Section 222(3) of the FW Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it fair to extend that period, within such further period as the Commission allows.
Mr Timothy Catterall declared in the Form F24A that the termination was agreed on 10 March 2023.
The Commission’s records show the application was filed on 16 March 2023 which means the application was made within 14 days after the termination was agreed to.
Consideration – s.223 of the FW Act
I must approve the application if I am satisfied that the requirements set out in s.223 of the FW Act are met.
Section 223(a) of the FW Act requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.
Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the FW Act?
Mr Catterall declared in the Form F24A that on 22 February 2023 employees were advised verbally and in writing of the time and place of the vote and the voting method. The correspondence provided to the employees stated that employees will able to cast their vote by placing their voting paper in a ballot box located in the lunchroom from 10:00am on 8 March 2023 until 2:00pm on 10 March 2023.
Having regard to the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the Applicant took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the FW Act.
Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the FW Act?
Mr Catterall declared in the Form F24A that the following steps were taken to give the employees covered by the Agreement a reasonable opportunity to decide on whether they want to approve the proposed termination:
· On 22 February 2023, the employees were provided with information regarding the proposed termination of the Agreement, which included a link to the Modern Award and a copy of the relevant legislative provisions;
· On 24 February 2023 and 1 March 2023, the Applicant conducted consultation sessions with the employees in relation proposed termination of the Agreement and the Modern Award.
In all the circumstances, I am satisfied that the steps taken by the Applicant satisfy the requirements of s.220(2)(b) of the FW Act.
Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?
Section 223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.
Mr Catterall declared in the Form F24 that 15 employees are covered by the Agreement, that 10 employees cast a valid vote, and 9 employees voted to approve the termination of the Agreement.
Having regard to the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.
Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
On 22 March 2023, the Commission directed that:
(i)by no later than 4:00 pm on Friday, 24 March 2023, the Applicant must provide a copy of the Form F24 Application, Form F24A Declaration, and a copy of these directions to its employees covered by the Agreement and any relevant employee organisations (if any);
(ii)by no later than 4:00pm on Monday 27 March 2023, a director or officer of the Applicant must file in the Commission and serve on any relevant employee organisations (if any), a statutory declaration confirming compliance with direction (i);
(iii)by no later than 4.00pm on Friday 31 March 2023, any employee or relevant employee organisations (if any) who wishes to make any submissions in relation to the Applicant’s application must file in the Commission (by emailing [email protected] and copying in all parties) any submissions or other documentary material;
The Commission also directed that if any party requests a hearing, then this request should be made along with the filing of materials in accordance with the directions and that in the absence of such a request the matter will be determined on the papers.
On 23 March 2023, Mr Catterall filed a statutory declaration confirming that the direction [1] had been complied with.
No submissions were filed by any employee.
Having regard to the steps taken in paragraphs [20]-[23] above, and the material before me, I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.
Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)
The Agreement does not cover any employee organisation.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of s.223 of the FW Act have been met.
There were no submissions filed by any employee in opposition of the application or otherwise.
The termination of the Agreement is approved.
Section 224 of the FW Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.
In accordance with s.224 of the FW Act, the termination will come into effect from 11 April 2023.
An Order to this effect PR761007 has been issued concurrently with this decision.
COMMISSIONER
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<AE899724 PR761006>
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