Urban Maintenance Systems Pty Ltd T/A Urban Maintenance Systems

[2021] FWCA 7146

[2021] FWCA 7146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Urban Maintenance Systems Pty Ltd T/A Urban Maintenance Systems
(AG2021/8459)

COMMISSIONER P RYAN SYDNEY, 15 DECEMBER 2021

Application for termination of the Urban Maintenance Systems Pty Ltd and Plumbing Union (VIC & NSW) Enterprise Agreement 2016-2020

[1] On 18 November 2021, Urban Maintenance Systems Pty Ltd (Applicant) 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 Urban Maintenance Systems Pty Ltd and Plumbing Union (VIC And NSW) Enterprise Agreement 2016-2020 (Agreement).

[2] The Agreement is a single enterprise agreement. The nominal expiry date of the Agreement is 30 September 2020.

[3] There are two employees covered by the Agreement and the underpinning modern award is the Plumbing and Fire Sprinklers Award 2020 (Modern Award).

Relevant Legislation Provisions

[4] 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)?

[5] The employer covered by the Agreement is Urban Maintenance Systems Pty Ltd (ABN 38 005 251 954). This is the same as the employer named in the Form F24 – Application for termination of an enterprise agreement by agreement (Form F24).

[6] Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement and that 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?

[7] The Application is accompanied by a Form F24A – declaration in support of termination of an enterprise agreement (Form F24A). I am satisfied that the Application is accompanied by the material required by the Fair Work Commission Rules 2013 and 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)?

[8] 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 in all the circumstances, it would be fair to extend that period, such period as the Commission allows.

[9] Ms Alicia Cirillo declared in the Form F24A that the termination was agreed on 11 November 2021.

[10] The Commission’s records show the Application was filed on 18 November 2021 which means the Application was made within 14 days after the termination was agreed to.

Consideration – s.223 of the Act

[11] I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

[12] Section 223(a) of the Act requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.

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?

[13] Ms Cirillo declared in the Form F24A that on 26 October 2021 employees were provided with a letter to notify the employees of the time, place and voting method that would be used and that on 11 November 2021 a ballot box was placed in a boardroom/meeting room and employees were provided with ballot papers.

[14] Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer 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?

[15] Ms Cirillo declared in the Form F24A that the following steps were taken to ensure that the employees covered by the Agreement were given a reasonable opportunity to decide on whether they want to approve the proposed termination:

● On 26 October 2021, meetings were held with the employees to explain the reason for the Applicant’s decision to terminate the Agreement and the effect of the termination upon their terms and conditions of employment;
● On 26 October 2021, employees were provided with a letter explaining the time, place and method of voting. The letter included links to the Agreement and the Modern Award;
● Further consultation took place with the employees over the period of 3-9 November 2021.

[16] In all the circumstances, I am satisfied the steps taken by the Applicant satisfy the requirements of s.220(2)(b) of the Act.

Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?

[17] 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.

[18] Ms Cirillo declared in the Form F24 that two employees are covered by the Agreement, both employees cast a valid vote and both employees voted to approve the termination of the Agreement.

[19] Having considered the materials 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)

[20] On 30 November 2021 the Commission directed that:

1. by no later than 4:00 pm on Thursday, 2 December 2021, the Applicant must email a copy of the directions to its employees covered by the Agreement and any relevant employee organisations (if any); 

2. by no later than 4:00pm on Friday, 3 December 2021, a director or officer of the Applicant must file in the Commission and serve on any relevant employee organisations (if any), a statutory declaration confirming compliance with the direction [1]; and 

3. by no later than 4.00pm Thursday, 9 December 2021, any employee or relevant employee organisations (if any) which oppose the termination of the Agreement must file in the Commission any submissions, written statements and documents they rely upon in opposition to the termination of the Agreement. 

[21] The Commission also directed that if any party requests a hearing, then this request should be made along with the filing of materials as per the above program and that in the absence of such a request the matter will be determined on the papers. 

[22] On 2 December 2021, Ms Cirillo filed a statutory declaration confirming that the direction [1] had been complied with.

[23] No submissions in opposition were filed by any employee.

[24] Having considered the material before the Commission, I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)

[25] The Applicant indicated in its Form F24 that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is covered by the Agreement

[26] The CEPU did not file any submissions in opposition to the Application.

Conclusion

[27] Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.

[28] There were no submissions filed by any employee or the CEPU in opposition or otherwise.

[29] The termination of the Agreement is approved.

[30] 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.

[31] In accordance with s.224 of the Act, the termination will come into effect from 15 December 2021.

[32] An Order to this effect has been issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR736814>