Tox Free Australia Pty Ltd

[2017] FWC 3884

[2017] FWC 3884

The attached document replaces the document previously issued with the above code on 26 July 2017.

Paragraph numbers corrected.

Julia Lee

Associate to DEPUTY PRESIDENT BINET

Dated 28 July 2017

[2017] FWC 3884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Tox Free Australia Pty Ltd
(AG2017/1551)

TOX FREE AUSTRALIA PTY LTD - HENDERSON, NORTH HENDERSON, BIBRA LAKE & KALGOORLIE SITE ENTERPRISE AGREEMENT 2014-2017

Waste management industry
DEPUTY PRESIDENT BINET	PERTH, 26 JULY 2017

Application for termination of the Tox Free Australia Pty Ltd - Henderson, North Henderson, Bibra Lake & Kalgoorlie Site Enterprise Agreement 2014-2017.

[1] The Fair Work Commission (FWC) has received an application (Application) by Tox Free Australia Pty Ltd (Tox Free) for the termination of the Henderson, North Henderson, Bibra Lake & Kalgoorlie Site Enterprise Agreement 2014-2017 (Agreement)pursuant to section 222 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement with a nominal expiry date of 4 May 2017.

[3] The Agreement covers the Transport Workers’ Union of Australia (TWU).

[4] Sections 220, 221, 222 and 223 of the FW Act state:

“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.

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.”

[5] The Application was supported by the statutory declaration of Human Resources Manager, Ms Amelia Treeby (Treeby Statutory Declaration).

[6] The Treeby Statutory Declaration states that employees covered by the Agreement were provide with information about why, when and how a vote was to be conducted to ascertain whether a majority of those employees approved the termination of the Agreement prior to the nominal expiry date of the Agreement. According to Ms Treeby, 12 of the 15 employees covered by the Agreement voted in favour of the termination of the Agreement on 2 May 2017. The Application was lodged with the FWC on 3 May 2017.

[7] On 16 June 2017, directions were issued to the TWU and Tox Free (Directions) directingthe TWU to file with the FWC and serve on Tox Free an outline of submissions in response to the Application (TWU Submissions).

[8] On 30 June 2017, the TWU contacted Chambers to advise that it does not object to the termination of the Agreement.

[9] Further directions were issued to Tox Free (Amended Directions)directingthem to provide a copy of the Application, the Treeby Statutory Declaration, the TWU Submissions, and the Amended Directions to all employees whose terms of employment are regulated by the Agreement. The Amended Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the FWC by close of business on Thursday 20 July 2017 with advice to that effect.

[10] On 14 July 2017, Ms Treeby filed a statutory declaration confirming that a copy of the Application, the Treeby Statutory Declaration, the TWU Submissions, and the Amended Directions had been provided to all employees whose terms of employment are regulated by the Agreement.

[11] No applications to be heard were received by any employees of Tox Free on or before close of business on Thursday 20 July 2017.

[12] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that Tox Free has complied with its obligations under subsection 220(2), that the termination was agreed to by a majority of employees in accordance with subsection 221(1), and that there are no reasonable grounds for believing that the employees have not agreed to the termination. I therefore must approve the termination of the Agreement.

[13] The termination will come into effect on the date of this decision.

DEPUTY PRESIDENT

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