The Wyatt Benevolent Institution Inc T/A The Wyatt Trust

[2022] FWCA 1476

[2022] FWCA 1476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

The Wyatt Benevolent Institution Inc T/A The Wyatt Trust

(AG2022/1108)

Wyatt Benevolent Institution Inc - Staff Enterprise Agreement

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 3 MAY 2022

Application for termination of the Wyatt Benevolent Institution Inc - Staff Enterprise Agreement.

1. On 12 April 2022, The Wyatt Benevolent Institution Inc T/A The Wyatt Trust (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Wyatt Benevolent Institution Inc - Staff Enterprise Agreement (the Agreement). This form of application contemplates the termination being agreed between the employer and a majority of employees covered by the Agreement.

1. The Agreement is a single enterprise agreement and was approved by the Fair Work Commission on 26 November 2019 with a nominal expiry date of 25 November 2022.

1. Section 220 of the Act provides:

“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.”

1. Section 221 of the Act establishes the agreed termination and relevantly provides:

“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.

… …”

1. Section 222 of the Act provides, in effect, that where a termination agreement is made, one of the parties covered by the Agreement must apply to the Commission within a nominated timeframe. This application has been made in accordance with the Act.

1. Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s.222 of the Act:

“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.”

1. Amongst other grounds for the application, the Commission has been advised that the categories of employee being engaged by the Employer now includes positions outside the present scope and classifications of the Agreement. Further, the Employer has taken various measures to ensure that the employees will not be worse off because of the proposed termination.

1. During the proceedings, the Employer provided 3 formal undertakings to the Commission that were consistent with those measures as follows:

1. No employee covered by the Agreement will be worse off as a result of the termination of the Agreement and the effect of this will be reflected into the terms of the staff contracts.

2. The Wyatt Trust Remuneration and Benefits Policy will be applied to all relevant employees.

3. Notwithstanding the date of termination, all employees will be paid at least the relevant current Agreement wage rates as adjusted on 1 July 2022 by the scheduled increase of 3.2% (clause 14), or the relevant outcome of the 2022 Annual Wage Review, whichever is the higher adjustment.

1. Based on the material before me; that is, the Form F24 application and the Form F24A Statutory Declaration by Ms Stacey Thomas, Chief Executive Officer of the Employer and her further submissions and undertakings given at the hearing before the Commission on 3 May 2022, I am satisfied that the requirements of s.223 of the Act have been met. This includes my satisfaction that:

·  The Employer met the notification requirements of s.220(1) of the Act and gave the employees a reasonable opportunity to decide whether to approve the proposed termination. I observe that all 9 of the employees presently covered by the Agreement voted in the ballot.

·  A majority of the employees (7 of 9) voted to make the termination agreement.

·  There are no grounds for believing that the employees have not genuinely agreed to the termination. In this regard I observe that all employees were given an opportunity to independently advise the Commission of any concerns about the process or the termination and no advice was provided to us.

1. I also consider that it is appropriate to approve the termination of the Agreement given the support of the parties, the circumstances now applying within the Employer’s operations and the steps taken by the Employer to ensure that the beneficial terms of Agreement are maintained.

1. Given the above findings, the Commission is obliged to terminate the Agreement under s.222 of the Act and I so determine.

1. Section 224 of the Act provides that the termination of an enterprise agreement operates from the date specified in the Decision. The parties sought that the termination be delayed until the commencement of the 2022/23 financial year. This is appropriate given the arrangements that need to be made and the undertakings provided by the Employer.

1. In accordance with s.224 of the Act and my determination, the termination will come into effect at 11.59pm Thursday 30 June 2022.

1. A copy of the Decision should be supplied to the employees and the Board of the Employer.

COMMISSIONER

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