The Trustee for S&F Family Trust T/A Pacificest Pty Ltd

[2020] FWC 5529

[2020] FWC 5529

The attached document wholly replaces the document previously issued with the code [2020] FWCA 5499 on 14 October 2020

Sarah Schooley

Associate to Deputy President Cross

16 October 2020

[2020] FWC 5529

FAIR WORK COMMISSION

DECISION

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

The Trustee for S&F Family Trust T/A Pacificest Pty Ltd
(AG2020/1522)

THE TRUSTEE FOR S&F FAMILY TRUST T-AS PACIFICEST PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019

DEPUTY PRESIDENT CROSS SYDNEY, 14 OCTOBER 2020

Application for termination of the The Trustee for S&F Family Trust T/A Pacificest Pty Ltd / CFMEU Collective Agreement 2019.

[1] On 12 July 2020, the Trustee for S&F Family Trust T/A Pacificest Pty Ltd (the “Applicant”) applied for the termination of the The Trustee for S&F Family Trust T/A Pacificest Pty Ltd / CFMEU Collective Agreement 2019 (the “Agreement”), pursuant to s.222 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved on 13 March 2019 1, and operated from 20 March 2019. The nominal expiry date of the Agreement was 1 May 2019.

[3] The Relevant provisions of the Act provide:

‘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.

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.’

‘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.’

[4] The procedural rules referred to in s.222(2) is a reference to Rule 26(1) of the Fair Work Commission Rules 2013, which provides:

‘ 26  Application for approval of termination of an enterprise agreement or collective agreement-based transitional instrument

(1) An application under section 222 of the Act for approval of termination of an enterprise agreement or a collective agreement-based transitional instrument must be accompanied by a declaration by the applicant or an officer or authorised employee of the applicant setting out the basis upon which the Commission can be satisfied that the requirements of section 223 of the Act have been met.

Note 1:       The declaration must be in the approved form—see subrule 8(2).

Note 2:       Section 223 of the Act sets out the circumstances in which the Commission must approve the termination.

Note 3: An application may be made under section 222 of the Act for termination of a collective agreement-based transitional instrument by virtue of the extended operation given to that section by item 15 of Schedule 3 to the Transitional Act. Item 15 provides that Subdivision C of Division 7 of Part 2-4 of the Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.’

[5] The Applicant is an employer covered by the Agreement and thus has standing to make the termination application.

[6] Section 223 of the Act sets out when the Commission must approve the termination of an enterprise agreement where an application to terminate such agreement is made.

‘ 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.’

The Views of the CFMMEU

[7] The agreement covered the Construction, Forestry, Maritime, Mining and Energy Union 2 (the “CFMMEU”). The CFMMEU had been a bargaining representative for the Agreement, and had given notice under s. 183 of the Act that it wanted the Agreement to cover it.

[8] On 2 June 2020 at 2.36pm, my chambers sent an email to the Applicant and the CFMMEU, as follows:

The Applicant, The Trustee for S&F Family Trust T/A Pacificest Pty Ltd, has made an application to the Commission for the termination of an enterprise agreement. The CFMEU is listed as an involved Employee Organisation in this matter and the Deputy President requests that the CFMEU provide its response to the Applicant’s application by 4pm Monday 8 June 2020.

[9] On 2 June 2020 at 3.04pm, my chambers received an email from Ms Sherri Hayward of the CFMMEU objecting to the application, as follows:

The CFMMEU was unaware that the application had been lodged and has not been served with the application. The applicant had previously applied for an order under s 225 of the Fair Work Act 2009 (AG2020/1245). That matter was allocated to Deputy President Dean who informed the CFMMEU yesterday that the application had been withdrawn. The CFMMEU objects to the termination of the agreement and respectfully requests that it be provided with a copy of the application lodged.

[10] On 2 June 2020 at 3.06 pm, my chambers sent an email to the CFMMEU as follows:

Dear Ms Hayward,

Please see attached form F24 and form F24A.

[11] On 29 June 2020 at 11.58am, my chambers issued a Notice of Listing containing Draft Directions.

[12] 1 July 2020 at 2.09pm, my chambers received an email from Ms Sherri Hayward of the CFMMEU per below. That email was not copied to the Applicant; it said:

Dear Associate

We refer to this matter which is currently listed for hearing on 23 July 2020.

We advise that the CFMMEU has decided to withdraw its objection to the application.

We note the applicant has been copied in to this email.

[13] On 1 July 2020 at 3.28pm, my chambers sent an email to the Applicant and the CFMMEU:

Dear Parties,

Thank you Ms Hayward for notifying Chambers.

The Deputy President requires and directs the Applicant to email all 7 voting employees to obtain their written approval for the termination of the enterprise agreement.

Please provide copies of correspondence to and from all employee by 4pm Friday 10 July 2020.

Views of the Majority of Employees

[14] On 2 Jul 2020 at 12.21pm, my chambers received an email from the Applicant. That email was not copied to the CFMMEU. That email said:

Subject: Fwd: CONFIRMATION OF VOTE FOR TERMINATION OF PACIFICEST PTY LTD EBA

hi sarah

This is a copy of the email I have sent out to our employees for them to respond to for your information. I will forward their responses to you as I receive them. Some of the guys maybe working remotely and may have problems accessing a computer but we will get most of them. We also have the hard copy of our paper ballots from our original vote as well as electronic recording of the vote count. We also have copies of our emails sent to the lads offering assistance with reading the EBA if required. i have keep the email short as we have already gone through a detailed process to make sure the vote was held fairly so the guys have a good knowledge of the process

regards scotty

[15] The Applicant’s 2 July 2020 email forwarded the Applicant’s email that had been sent to employees dated Thursday 2 July at 12:03pm, and which said:

Hi lads hope all is well

As a follow up to our last written ballot that we engaged in at our yard on the 29th of May 2020 where employees voted on whether to keep our EBA with the CFMEU or to terminate it, the Fairwork commissioner would like to hear directly from our employees to confirm their vote.

As a result I have sent an email to each of you requiring you to confirm your ballet for the commission by return answering a simple" yes or no" email in relation to the following question.

"Our company Pacifiicest Pty Ltd, should terminate our current enterprise bargaining agreement (Eba) No AE502239 with the CFMMEU". 

Please respond with a simple yes or no in the reply section of THIS email and I will forward your response down directly to the Fair Commission. This needs to be done soon as possible so a quick response would be appreciated. I appreciate that some of you may have a problem accessing a computer put it is important that you make every effort to respond with your response.

The question you are voting on is identical to the ballot question we voted on at our yard on the 29th May 2020.

Thanks Scotty

Operations

[16] On 2 July 2020 at 12.23pm, my chambers received an email from the Applicant. That email was not copied to the CFMMEU. That email said:

see attached votes.

There were, however, no documents attached to the email.

[17] On 2 July 2020 at 12.29pm, my chambers sent an email to the Applicant and the CFMMEU as follows:

RE: CONFIRMATION OF VOTE FOR TERMINATION OF PACIFICEST PTY LTD EBA.

Dear Mr Seamer,

Thank you for sending me through that email.

As there are 19 voting employees, if you could please collate the emails together and send through as one that would be most helpful in reducing the administrative work required to terminate the agreement and enable an expeditious outcome.

Thank you for your understanding. I have copied the CFMMEU here for transparency.

[18] On 6 July 2020 at 12.32pm, my chambers received an email from the Applicant. That email was not copied to the CFMMEU. That email said:

Fwd: CONFIRMATION OF VOTE FOR TERMINATION OF PACIFICEST PTY LTD EBA

Hi there attached votes for Eba termination for Pacificest Pty Ltd

scotty

All that was forwarded was an email dated Thursday 2 July 2020 at 4.24pm from Nathan Pinkerton stating “yes”.

[19] On 6 July 2020 at 12.33pm, my chambers received an email from the Applicant. That email was not copied to the CFMMEU. That email said:

Fwd: Yes

All that was forwarded was an email dated Friday 5 July 2020 at 5.00am, from Jammie Macdonald stating “yes”.

[20] On 6 Jul 2020 at 12.34pm, my chambers received an email from the Applicant. That email was not copied to the CFMMEU. That email said:

Fwd: Eba

vote attached pacificest Pty ltd EBA

That email forwarded an email dated Thursday 2 July 2020 at 2.30pm from Ricky Marsh Subject: Eba “Yes terminate eba”.

[21] On 15 July 2020 at 10.01am, my chambers received an email from Sherri Hayward of the CFMMEU, copied to the Applicant, as follows:

Dear Associate

We refer to this matter and the notice of listing which was issued on 29 June 2020.

We note that the last listing the CFMMEU received has the matter listed for hearing on 23 July 2020. We are unsure as to whether the matter has been concluded.

Given that the CFMMEU has withdrawn its objection, could you please advise whether our attendance at the hearing is still required?

[22] On 15 July 2020 at 12.05pm, my chambers sent an email to the CFMMEU and the Applicant:

Dear Ms Hayward,

Thank you for being in contact and seeking clarification. The CFMMEU’s attendance is not required and further the listed hearing scheduled for 23 July 2020 is vacated.

I note however that the matter has not been concluded and that the Deputy President is awaiting confirmation emails in relation to the termination from all 19 voting employees. Mr Seamer, please arrange to have these emails produced so that the termination application can be progressed.

[23] On 15 July 2020 at 12.14pm, my chambers received an email from the Applicant. That email was not copied to the CFMMEU. That email said:

I thought I had already sent them through Sarah.  Have you got any of the votes or have I stuffed up sending them.

scotty

[24] On 15 July 2020 at 1.18pm, my chambers sent an email to the Applicant, copied to the CFMMEU:

Hi Mr Seamer,

I have received three ‘yes’ votes, forwarded by you, for the voting employees including: Mr Pinkerton, Mr Macdonald and Mr Marsh.

The Deputy President requires responses from all voting employees to terminate the agreement.

[25] On 22 July 2020 at 12.31pm, my chambers received an email from the Applicant. That email was not copied to the CFMMEU. That email said:

Hi there

Attached votes from our employees for pacificest Pty Ltd as requested. I did send them earlier but must have stuffed them up. Let us know if they don't come through again

[26] On 24 July 2020 at 3.22pm, my chambers sent an email to the Applicant, copied to the CFMMEU:

Subject: s.222 application for termination of the The Trustee for S&F Family Trust T/A Pacificest Pty Ltd / CFMEU Collective Agreement 2019

Dear Scott

The votes you hoped to send on Wednesday were not attached. Is there a chance that you could print them all and scan as a PDF document? You can also forward emails separately to [email protected]

The matter cannot progress until confirmation of the employees' votes is filed.

Please also always copy Ms Deacon of the CFMMEU in your emails to chambers ([email protected]). Ms Deacon is copied in this email.

[27] On 20 August 2020 at 3.51pm, my chambers sent an email to the Applicant, copied to the CFMMEU:

Dear Scott,

I am following up on the below to ensure that the application for termination of the enterprise agreement is progressed.

[28] On 21 August 2020 at 10am my chambers received an email from the Applicant, again, not copied to the CFMMEU, the relevant parts relating to employees voting and approving termination being as follows:

Hi Sarah

Hope all is going well

Not sure whats going on with it.  I was asked to have guys send down an electronic vote to you guys some were sent but scaffolders being scaffolders a lot of the blokes wouldn't have bothered. It doesn't help that a lot of them are FiFo workers as well. Can't blame them really this will be the third time they have voted on the same motion with no result. We have gone to great length to ensure all our guys have their say so I will send down attached to this email their actual ballot papers so you can see their votes that was held on the 25/05/20.

As far as our company and our employees are concerned the issue is dead in the water. We have all voted (trice actually), had our democratic say, and moved on. ….

….

With all due respect to the commission, you guys have probably got more important things to waste your time on at the moment just like us. The voting slips are attached if they aren't satisfactory then so be it.

Regards Scotty

The email attached two PDF documents. The first document was 7 pages of individual employee votes, with the six employees identified by full names, one by first name (“Simon”) or nick names (“Scoobs” and “Hoppo”), one un-named ballot, plus one handwritten tally of votes (all yes). The second document being 12 pages of votes (all yes), had only two ballots identified by full names. All other ballots were unnamed, though one included the initials (“CH”).

[29] On 21 August 2020 at 1.08pm, my chambers sent an email to the Applicant, copied with the CFMMEU:

Dear Scott,

Thank you for the provision of the voting slips. I note that only 8 of the voting employees have signed their names. Therefore, it is unfortunately impossible to confirm that the other voting slips belong to the other employees.

I have raised your concerns and difficulties with the Deputy President. He is concerned that it is not ascertainable that the 19 employees support the termination of the enterprise agreement. The Deputy President must be satisfied that the employee support the termination.

Your email to the employees is sufficient in requesting their responses. All that is required is a simple yes or no response from the employees.

[30] On 7 September 2020 at 2.55pm, my chambers sent an email to the Applicant, copied with the CFMMEU:

Dear Scott,

I refer to my below email requesting further responses from the employees as many of the voting slips were un-signed.

Please advise whether or not you will be providing these confirmations, and by what date.

Consideration

[31] As may be seen in the above recitation of the communications with the Applicant, the Commission has gone to extraordinary lengths to obtain confirmation emails in relation to the termination of the Agreement from all 19 named voting employees. After all efforts only eight voting slips with full identifying names were provided. In those circumstances I cannot be satisfied that a majority of employees of all voting employees have agreed to approve the termination of the Agreement (ss.221(1) and 223 (b) of the Act).

[32] I cannot conclude that each of the matters contained in s.223 of the Act are satisfied, and so cannot approve the termination of the Agreement.

[33] The application to terminate the Agreement is dismissed.

Printed by authority of the Commonwealth Government Printer

<AE502239 PR723618>

 1   [2019] FWCA 1584.

 2   [2019] FWCA 1584, at [3].