The Trustee for National Rail Solutions Trust National Rail Solutions Pty Ltd T/A National Rail Solutions Pty Ltd

[2020] FWCA 3997

[2020] FWCA 3997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

The Trustee for National Rail Solutions Trust National Rail Solutions Pty Ltd T/A National Rail Solutions Pty Ltd
(AG2020/2097)

NATIONAL RAIL SOLUTIONS PTY LTD INFRASTRUCTURE AGREEMENT 2019
(ODN AG2019/1628) [AE503922]

Rail industry
DEPUTY PRESIDENT BULL	SYDNEY, 10 AUGUST 2020

Application for termination of the National Rail Solutions Pty Ltd Infrastructure Agreement 2019. Agreement terminated.

[1] The Trustee for National Rail Solutions Trust, National Rail Solutions Pty Ltd T/A National Rail Solutions Pty Ltd (the Applicant) has made an application in the Fair Work Commission (the Commission) to terminate the National Rail Solutions Pty Ltd Infrastructure Agreement 2019 (the Agreement).

[2] The application was made under s.222 Subdivision C Termination of enterprise agreements by employers and employees of Division 7 Variation and termination of enterprise agreements of Part 2-4 ENTERPRISE AGREEMENTS of the Fair Work Act 2009 (the Act).

[3] Section 222 of the Act relates to the termination of an in-term agreement where a ballot has been held asking employees to approve a proposed agreement termination. Once it has been agreed to terminate the agreement a person covered by the Agreement must apply to the Fair Work Commission (Commission) for approval of the termination.

[4] The Agreement, being a greenfields agreement, was approved by the Commission on 14 June 2019 and in accordance with s.54 of the Act, came into operation from 21 June 2019. The nominal expiry date of the Agreement is 14 June 2022.

[5] Clause 1.2.1 of the Agreement lists the parties covered by the Agreement and names the National Rail Solutions Pty Ltd as trustee for National Rail Solutions Trust as being covered by the Agreement, which despite the varied wording is the Applicant in this application.

[6] It is stated by the Applicant that the application to terminate the Agreement has been made as the Agreement is currently not compliant with the Australian Building and Construction Commission Code for the Tendering and Performance of Building Work 2016 (the Code) and that the Applicant intends to make a new agreement that is Code compliant.

Relevant Legislation

[7] Section 220 of the Act states that employers may request employees to approve a proposed termination of an enterprise agreement by voting for it and prescribes the steps and methods in doing so under ss. 220(2):

“(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.”

[8] Section 221 of the Act then prescribes when termination of an 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.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-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 of each individual employer who cast a valid vote have approved the termination.”

[9] Section 222(3) of the Act requires that the application must be made within 14 days after the termination is agreed. This requirement is satisfied as the agreement to terminate took place on 3 July and the application to the Commission was made on 17 July 2020.

[10] Section 223 of the Act sets out the provisions relevant to the Commission approving the termination of an enterprise agreement pursuant to an application made under s.222:

“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

[11] The application was supported by a Form F24A - Statutory Declaration made by Mr Bruno Marques Belloff Protection Officer of the Applicant. Mr Belloff declared at clause 2.4 that one casual employee is covered by the Agreement and that the employee cast a valid vote in favour of terminating the Agreement.

[12] Mr Belloff declared that the following steps were taken to ensure that the relevant employee was given a reasonable opportunity to decide whether they wanted to approve the termination:

(a) On 19 June 2020, the applicant proposed termination of the Agreement with the current employee. The applicant advised the employee that it ‘would need to know and vote within the next two weeks to be finalised at the Monthly Employee Meeting on the 03.07.2020’. The employee was notified that the Monthly Meeting was to occur at Mount Annan at 10am on 3 July 2020.

(b) On 3 July 2020, the vote occurred at the Monthly Employee Meeting and it was agreed to cancel the Agreement to pursue a new agreement.

[13] In respect of s.223(a) of the Act, and based on the employer’s declaration as made by Mr Belloff, I am satisfied that the Applicant has complied with subsection 220(2) of the Act by taking all reasonable steps to notify employees of the time and place at which the vote was to occur, the voting method to be used and has provided a reasonable opportunity for employees to decide whether they wish to approve the proposed termination.

[14] I am further satisfied in respect of s.223(b) of the Act that the majority of employees who cast a valid vote, voted to approve the proposed termination.

[15] Subsections 223(c) and (d) of the Act require the Commission to be satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination and for the Commission to take into account the views of any employee organisation covered by the Agreement when considering whether it is appropriate to approve the termination. I note that the decision 1 to approve the Agreement states at [5] that pursuant to s.53(2)(b) of the Act the Agreement was made with the Australian Rail, Tram and Bus Industry Union (RTBU) and that the Agreement covers the RTBU.2

[16] On 28 July 2020, my chambers wrote to the RTBU and provided a copy of the application to terminate the Agreement and accompanying Form F24A - Statutory Declaration of Mr Belloff. In accordance with s.223(d) of the Act, the views of the RTBU regarding the application were sought by close of business on 6 August 2020. On 29 July 2020, the Commission received a response from Minna Davis, Research and Industrial Officer at the RTBU advising that the RTBU has no objection to the application to terminate the Agreement.

[17] On 6 August 2020, Mr Mark Burling the Director of the Applicant wrote to my chambers advising that the employee that voted to terminate the Agreement will be subject as a minimum to the same terms and conditions as those found in the Agreement currently if the Agreement is cancelled.

[18] On this basis there are “no other reasonable grounds” for believing that the employee has not agreed to the proposed termination of the Agreement. The employee has genuinely voted in favour of the termination, the requirements of s.223 of the Act have been met and I consider that it is appropriate to approve the termination of the National Rail Solutions Pty Ltd Infrastructure Agreement 2019.

[19] Pursuant to s.224 of the Act, the termination of the Agreement will be effective as of today’s date.

[20] An order giving effect to this decision is separately issued in [PR721661].

DEPUTY PRESIDENT

 1   [2019] FWCA 4133

 2   See also clause 1.2 Parties Bound of the Agreement

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