The Outdoor Education Group
[2025] FWCA 2175
•4 JULY 2025
| [2025] FWCA 2175 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement
The Outdoor Education Group
(AG2025/1224)
THE OUTDOOR EDUCATION GROUP ENTERPRISE AGREEMENT 2017
| Miscellaneous | |
| COMMISSIONER ALLISON | MELBOURNE, 4 JULY 2025 |
Application for termination of The Outdoor Education Group Enterprise Agreement 2017
The employer, the Outdoor Education Group (OEG) has applied to terminate The Outdoor Education Group Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.222 of the Fair Work Act 2009 (the Act), which provides for termination of an enterprise agreement by agreement between the employer and employees. The application was accompanied by a Declaration in support of termination of an enterprise agreement (Form F24A) made by Samantha McMaster, Chief People Officer of OEG.
The Agreement nominally expired on 4 July 2022. The majority of OEG’s workforce are covered by a new agreement – the Outdoor Education Group Enterprise Agreement 2024[1] (2024 Agreement). However, a group of 18 employees in management and other bespoke positions (the relevant employees) are outside of the scope of the 2024 Agreement and remain covered by the Agreement. The OEG sought agreement with the relevant employees to terminate the Agreement.
Upon this matter being allocated to me, I directed the OEG to serve upon the relevant employees a copy of the application documents and a short explanatory statement relating to the application and inviting employees to submit any views they may have regarding the application to the Commission. A number of employees provided views. Ultimately, no employee objected to the termination.
I note that while the Agreement includes several above award entitlements, the OEG has notified employees (and included in Ms McMaster’s declaration to the Commission) that:
“any adverse effects of the proposed termination, including a reduction in leave, [will] be offset by a commensurate increase to the … Employee’s annual salary.”
Legislative Requirements
Pursuant to s.219 of the Act, an employer and its employees may “jointly agree” to terminate an enterprise agreement. A termination of an enterprise agreement by joint agreement has no effect unless approved by the Commission: s219(2).
Section 220(1) provides that an employer may request employees to approve a proposed termination of an agreement by voting for it. Section s. 220(2) provides that before making a request, an 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.”
Section 221(1) provides a termination is “agreed to” when a majority of the employees who cast a vote approve the termination.
Sections 222 –224 set out various requirements that must be met for approval of the termination, as well as when any termination comes into operation.
Sections 223 and 224 relevantly 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.
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
Section 222
I am satisfied that the requirements of s.222(1) and (2) of the Act are met. I am also satisfied that the application was made within 14 days after the termination was agreed in accordance with s.222(3).
Section 223
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.
Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)
In OEG’s Form F24A, Ms McMaster outlined in respect of s.220(2)(a) that employees covered by the Agreement were notified on 29 April 2024 that OEG intended to apply to terminate the Agreement once the 2024 Agreement was approved by the Commission. Ms McMaster also noted that the following steps were taken in respect of s.220(2)(a):
- Between 3-14 April 2025, individual meetings were held with OEG and employees covered by the Agreement, during which the employees were told that anonymous voting would occur electronically. These employees were asked to confirm which email address they would like to use to receive details of the vote.
- On 14 April 2024, the employees were then advised via email that voting was open and would close at 5:00PM on Thursday, 17 April 2025.
- Between 14-17 April 2025, voting reminders were also issued to employees via email, at 10:30AM each day.
I am satisfied the above steps satisfy the requirements of s.220(2)(a).
In the Form F24A, Ms McMaster then also noted that the following steps were taken in respect of s.220(2)(b):
- A ‘Town Hall’ meeting was held on 26 November 2024, in which OEG explained to employees covered by the Agreement that termination of the Agreement would enable OEG to implement new internal policies that better align with the current roles and functions performed by the team and that, following the proposed termination, terms and conditions of employment presently covered by the Agreement would be set out in contracts of employment, underpinned by the applicable modern award.
- Between 3 and 14 April 2025, OEG then held individual meetings with each employee still covered by the Agreement to explain OEG’s rational for pursuing termination of the Agreement and discuss any potential adverse effects of the proposed termination and how it intended to offset those.
I am satisfied the above steps satisfy the requirements of s.220(2)(b).
The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)
The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
In the Form F24A, Ms McMaster declared that voting commenced on 15 April 2024 and ended on 17 April 2024. Of the 18 employees covered by the Agreement, 17 cast a valid vote and 16 voted to approve the termination of the Agreement.
Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).
There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
On the material before me - including my further inquiries and Ms McMaster’s declaration that the relevant employees have been informed that any adverse effects will be offset by a commensurate increase - I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.
While there were no employee organisations covered by the Agreement whose views needed to be taken into account under s.223(d), I am otherwise satisfied that it is appropriate to approve the termination.
Conclusion
Based on the material contained in the declaration made by Ms McMaster filed with the Application, I am satisfied that OEG has complied with the requirements in s.220(2) of the Act. The Application has been made in accordance with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.
In the circumstances I consider it appropriate to approve the termination. In accordance with s.224, the termination will come into effect from 4 July 2025.
COMMISSIONER
[1] AE524436 - PR774328.
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