Urban Maintenance Systems Pty Ltd

[2023] FWCA 682

[2023] FWCA 682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Urban Maintenance Systems Pty Ltd

(AG2023/331)

Urban Maintenance systems Pty Ltd Enterprise Agreement 2012-2014

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 2 MARCH 2023

Application for termination of the Urban Maintenance systems Pty Ltd Enterprise Agreement 2012-2014

1. Urban Maintenance Systems Pty Ltd (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act) for approval to terminate the Urban Maintenance systems Pty Ltd Enterprise Agreement 2012-2014[1] (the Agreement). The Applicant is the employer covered by the Agreement.

1. The Agreement is a single enterprise agreement and was approved by the Commission on 31 July 2012. It reached its nominal expiry date on 1 December 2014.

1. The relevant provisions of the Act are as follows:

“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.

1. Section 223 of the Act provides:

“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. Section 224 of the Act provides as follows:

“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.”

1. The Application was supported by a Statutory Declaration made by Mr Stan Ingerman, People & Culture Manager of the Applicant on 15 February 2023.

1. Mr Ingerman declared, among other things, that of the 2 employees covered by the Agreement, both cast a valid vote in relation to whether the Agreement should be terminated and both voted to terminate the Agreement. Mr Ingerman further declared that the termination was agreed to on 15 February 2023.

1. Mr Ingerman further declared that information sessions were held to explain the termination of the Agreement. On 23 February 2023 Mr Jimmy Li, representative for the Applicant, provided evidence of the materials sent out to the employees covered by the Agreement. The evidence provided were letters to the two affected employees which guaranteed a rate of pay substantially above the Electrical, Electronic and Communications Contracting Award 2020 (the Award), including the continuation of terms of the Agreement which overall are superior to the terms and conditions contained in the Award, those being RDOs, overtime, penalty rates and annual leave loading among other favourable terms.

1. On 1 March 2023, following a conference, Mr Ingerman submitted copies of the ballot papers signed and cast by the affected employees.

1. I note that the Electrical Trades Union (the Union) was a party to the Agreement. The union was made aware of this Application on Tuesday 21 February 2023 when my chambers sent out a notice of listing. My chambers has not received a response from the Union

1. Based on the material that is before the Commission, including Mr Ingerman’s statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met and the matter can be determined on the papers. In particular, I am satisfied that:

   (a)the Applicant complied with s.220 of the Act in relation to the steps taken to request employees to approve the termination of the Agreement, notification of the time, place and date of the vote and employees voted by ballot;

   (b)the termination of the Agreement was agreed to in accordance with s.221 of the Act;

   (c)there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination; and

   (d)it is appropriate to approve the termination of the Agreement taking into account the views of the employee organisations covered by the Agreement.

2. Accordingly, the termination will operate from 2 March 2023.

COMMISSIONER

[1] AE895754.

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