Vision International Forwarding Pty Ltd ATF The Vision Unit Trust T/A Vision International Forwarding Pty Ltd

[2020] FWCA 4725

[2020] FWCA 4725

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Vision International Forwarding Pty Ltd ATF The Vision Unit Trust T/A Vision International Forwarding Pty Ltd
(AG2020/2409)

VISION INTERNATIONAL FORWARDING PTY LTD ATF VISION UNIT TRUST EMPLOYEE COLLECTIVE AGREEMENT

Storage services
COMMISSIONER HUNT	BRISBANE, 10 SEPTEMBER 2020

Application for termination of the Vision International Forwarding Pty Ltd atf Vision Unit Trust Employee Collective Agreement – application approved – agreement terminated.

[1] On 13 August 2020, Vision International Forwarding Pty Ltd atf The Vision Unit Trust (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Vision International Forwarding Pty Ltd atf Vision Unit Trust Employee Collective Agreement (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a Form F24C, Declaration in relation to termination of an enterprise agreement after the nominal expiry date of Ms Leanne Michelle James, Financial and Strategic Planning Controller of the Employer. The application was also supported by a statement of Mr Stephen Rider, Managing Director of the Employer.

Original application

[3] In its Form F28 application the Employer at question 2.1 selected that the application being made was an “application for termination of a collective agreement-based transitional instrument after the nominal expiry date by application by one of the parties”, in which the Fair Work Commission (Commission) would need to take into consideration the conditions which must be met for an agreement to be terminated as set out in s.225 of the Fair Work Act 2009 (the Act).

[4] The Employer’s Form F28 application stated that agreement to terminate the Agreement “was achieved through an employee ballot conducted from 24^th July 2020 and 3^rd August 2020. With agreement to terminate on 4^th August 2020. The ballot resulted in a 12 to 1 YES vote”. Annexed to the application was a copy of a memorandum containing the ballot and voting procedures provided to employees covered by the Agreement on 23 July 2020 together with a copy of the voting record and ballot count dated 4 August 2020. As such, I considered it appropriate to invite the Applicant to make an amended application under s.222 of the Act (being Sch. 3, Item 15 of the Transitional Act as the Agreement is a transitional instrument).

Amended application

[5] On 31 August 2020, the Employer filed an amended application under s.222 of the Act containing a Form F24, Application for termination of an enterprise agreement by agreement, together with a Form F24A statutory declaration of Ms James. It is noted that because the Agreement is a transitional instrument the correct form to apply is a Form F28 with the selection that the application being made is under Sch. 3, Item 15 of the Transitional Act.

[6] Pursuant to s.586(a) of the Act I allow the correction and amendment of the Employer’s application as filed 31 August 2020. Pursuant to s.586(b) of the Act I also waive the irregularity in the form and manner in which the amended application was made to the Commission.

Relevant legislation

[7] Item 15 of Schedule 3 of the Transitional Act provides that Subdivision C of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[8] The conditions which must be met for an agreement to be terminated per Subdivision C of Division 7 of Part 2-4 of the Act is as follows:

“Section 219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

219(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer – the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers – all of the employers and the employees covered by the agreement.

Termination has no effect unless approved by the FWC

219(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.

…..

Section 220 Employers may request employees to approve a proposed termination of an enterprise agreement

220(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.

220(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.

220(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

Section 221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

221(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.

…..

Section 222 Application for approval

Application for approval

222(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

222(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

222(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.

Section 223 When the FWC must approve a termination of an enterprise agreement

223 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.”

Consideration

[9] The statements of Ms James and Mr Rider declare, amongst other things, that the 20 employees covered by the Agreement were given a reasonable opportunity to decide whether they wanted to approve the termination, were notified of the time and place of the vote and that of the 13 votes cast, 12 employees approved the termination of the Agreement.

[10] There are no employee organisations covered by the Agreement to which I can consider the views of pursuant to s.223(d) of the Act.

[11] The amended application was not filed within 14 days after the termination was agreed to as required by s.222(3)(a) of the Act. In all the circumstances I consider it fair to extend that period as allowed by s.222(3)(b) of the Act, noting that the amended application was filed at my invitation.

Conclusion

[12] The consideration at s.223 requires that the Commission must approve the termination of an agreement if all the requirements in ss.223(a) to (d) are met. For the reasons set out above, I have determined that I am satisfied that all these requirements have been met.

[13]
I approve the termination of the Agreement effective from today, 10 September 2020.

COMMISSIONER

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