UCC Coffee Australia Limited
[2024] FWCA 4040
•19 NOVEMBER 2024
| [2024] FWCA 4040 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
UCC Coffee Australia Limited
(AG2024/3143)
MOCOPAN COFFEE ENTERPRISE AGREEMENT 2018
| Food, beverages and tobacco manufacturing industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 19 NOVEMBER 2024 |
Application for termination of the Mocopan Coffee Enterprise Agreement 2018
UCC Coffee Australia Limited (Applicant) has made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Mocopan Coffee Enterprise Agreement 2018 (Agreement).
The Agreement is a single enterprise agreement. It was approved by Commissioner Harper-Greenwell on 12 October 2018.[1]
The nominal expiry date of the Agreement is 12 October 2020.
Legislation
The relevant provisions of the Act are as follows:
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.
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.
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 – s.222 of the Act
Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?
Clause 1.3. of the Agreement provides that the Agreement applies to:
Suntory Coffee Australia Limited (“the Company”) ACN 000 254 660/ABN 49 000 254 and its employees whose employment is subject to the Agreement.
The material before the Commission establishes that ‘Suntory Coffee Australia Limited’ is a former business name of the Applicant, and that the entities share ACN and ABN numbers. Accordingly, I am satisfied that:
(a)The Application was made by an employer covered by the Agreement; and,
(b)The Applicant has standing to make the Application.
Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?
The Application is accompanied by a ‘Form F24A – declaration in support of termination of an enterprise agreement’ (Form F24A). Accordingly, as the Application is accompanied by the material required by the Fair Work Commission Rules 2024, I am satisfied that the requirements of s.222(2) of the Act have been met.
Has the Application been made within the required timeframe per s.222(3)(a)?
Section 222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines that in all the circumstances it would be fair to extend that period, such period as the Commission allows.
It is declared in the Form F24A that the termination was agreed on 5 August 2024. The Commission’s records show that the Application was filed on 16 August 2024, which is within 14 days after the termination was agreed. I am satisfied that the requirements of s.222(3) of the Act have been met.
Consideration – s.223 of the Act
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.
Section 220(2) of the Act
Section 223(a) requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement.
Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?
On 15 July 2024, various representatives of the Applicant explained that a vote would be taken on whether the employees approved the termination of the Agreement, and provided information on the process for the conduct of the vote. The Form F24A declared that the employees covered by the Agreement were informed of the date, time and process for the vote to terminate the Agreement by way of a memorandum placed on a noticeboard at the Applicant’s Preston Site on 25 July 2024. Mr Peter Stathos, Operations Manager, had discussions with some employees of the Applicant on the same date explaining the voting process. The vote commenced on 5 August 2024.
Having considered the material before the Commission, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the Applicant took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.
Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?
It is declared on the Form F42A that there are eight employees of the Applicant who are covered by the Agreement. It is declared that on 15 July 2024, seven of the employees covered by the Agreement[2] met with Mr Stathos and Ms Aileen Ferella, Production Manager. Mr Stathos and Ms Ferella informed the employees that the Applicant was seeking to terminate the Agreement through a vote and would issue new common law contracts, underpinned by the Food, Beverage and Tobacco Manufacturing Award 2020 (the Award) which would form the basis for the terms and conditions of their employment. The following day the Applicant provided employees with proposed individual contracts which set out the terms of their employment as well as a document comparing the Agreement against the contracts, information regarding the termination and voting process and various policy documents. The employees executed and returned signed letters of offer by 24 July 2024. Various employees approached Mr Stathos on 25 July 2024. Mr Stathos discussed the terms of the proposed individual contracts with the employees individually and the process for the physical ballot to be conducted at the Preston site on 5 August 2024.
The Form F24A declares that on 25 July 2024, copies of the following documents were placed in the lunchrooms at the Applicant’s Preston site:
(a)The Agreement;
(b)An extract from the National Employment Standards; and,
(c)The Award (as it was at that time).
Having considered the documents and submissions filed by the Applicant, I am satisfied that the Applicant has given the employees a reasonable opportunity to decide whether they want to approve the proposed termination of the Agreement.
Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?
Section 223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.
The Form F24A declares that all eight employees covered by the Agreement cast valid votes in the ballot on 5 August 2024. Of the eight employees, seven voted in favour of approving the termination of the Agreement. The supporting documents filed by the Applicant are consistent with the employees having cast a valid vote to approve the termination of the Agreement.
Having considered the material before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.
Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
There is no material before me indicating that there are any other reasonable grounds for believing that the employees have not agreed to the termination, and I am accordingly satisfied in relation to s.223(c).
Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)
The United Workers’ Union (UWU) is a bargaining representative covered by the Agreement. Pursuant to directions issued by my Chambers, the Applicant filed a statutory declaration that the documents on which it relied in support of its application were provided to the UWU and to the employees covered by the Agreement.
On 25 October 2024, I issued directions that the UWU and any employees covered by the Agreement were to file material by 18 November 2024 if they sought to oppose the termination of the Agreement. No submissions in opposition were filed.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.
Section 224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.
In accordance with s.224 of the Act, the termination will come into effect from 19 November 2024.
An Order[3] to this effect has been issued concurrently with this decision.
DEPUTY PRESIDENT
[1] [2018] FWCA 6343.
[2] The Form F24A declares that the eighth employee covered by the Agreement was on workers’ compensation leave at the time of the meeting and was absent from work.
[3] PR781415.
Printed by authority of the Commonwealth Government Printer
<AE500439 PR781414>
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