Ziegam Pty Ltd T/A Telstra Store Darwin & Telstra Business Technology Centre NT
[2022] FWCA 1509
•4 MAY 2022
| [2022] FWCA 1509 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.222—Enterprise agreement
Ziegam Pty Ltd T/A Telstra Store Darwin & Telstra Business Technology Centre NT
(AG2022/575)
ZIEGAM ENTERPRISE AGREEMENT 2013
| Northern Territory | |
| Commissioner Matheson | SYDNEY, 4 MAY 2022 |
Application for termination of the Ziegam Enterprise Agreement 2013.
On 3 March 2022, Ziegam Pty Ltd T/A Telstra Store Darwin & Telstra Business Technology Centre NT (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 Ziegam Enterprise Agreement 2013 (Agreement).
The Agreement is a single enterprise agreement. It was approved by Senior Deputy President Hamberger on 11 February 2013.[1]
The nominal expiry date of the Agreement is 17 February 2017.
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)?
The employer covered by the Agreement is Ziegam Pty Ltd. This is the same as the employer named in the Form F24 – Application for termination of an enterprise agreement by agreement.
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?
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)?
S.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.
It is declared in the Form F24A that the termination was agreed on 3 March 2022.
The Commission’s records show the Application was filed on 3 March 2022, which means the application was made within 14 days after the termination was agreed to.
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.
S.220(2)
S.223(a) 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?
It is declared in the Form F24A that, on 28 February 2022, employees were provided with a documented notice and that this notice included the date and the time of the meetings. Further information was sought by the Commission in relation to this requirement. On 3 May 2022, Mr Gamston of the Applicant filed a statutory declaration declaring that, when staff were individually handed a letter titled “Termination of Ziegam Enterprise Agreement” on 28 February 2022, they were also advised that a secret ballot would be held at the end of the meeting to vote for or against termination of the Agreement. It was declared that meeting times were advised for 2 and 3 March 2022 at the respective sites.
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?
It is declared in the Form F24A that a documented notice was provided to employees on 28 February 2022, which explained the rationale for the proposed termination and noted that, while the Agreement contains conditions that exceed those in the General Retail Industry Award 2020 (Award) which will apply if the Agreement is terminated, it is committed to maintaining these. The notice indicates that a meeting will be held where the differences between the Award and Agreement will be discussed and, at a hearing of the Commission on 21 April 2022, the Applicant submitted that it had multiple discussions with its employees regarding the proposed termination of the Agreement.
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?
S.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.
It is declared in the Form F24A that 29 employees are covered by the Agreement, 27 cast a valid vote and 27 voted to approve the termination of the Agreement.
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)
No submissions in opposition to the Application were filed by any employee and, based on 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)
There are no employee organisations covered by the Agreement.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.
No submissions in opposition were filed.
S.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 4 May 2022.
An Order to this effect PR741234 has been issued concurrently with this decision.
COMMISSIONER
[1] [2013] FWCA 960.
Printed by authority of the Commonwealth Government Printer
<AE899828 PR741233>
0
0
1