APP Painting Solutions Pty Ltd [2023] FWC 2197

1 Fair Work Act 2009 s.222—Enterprise agreement APP Painting Solutions Pty Ltd (AG2023/2602) Building, metal and civil construction industries COMMISSIONER BISSETT MELBOURNE, 31 AUGUST 2023 Application for termination of the APP Painting Solutions Pty Ltd’ Enterprise Agreement 2020 [1] On 2 August 2023 App Painting Solutions Pty Ltd (the Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (FW Act) to terminate the ‘APP Painting Solutions’ Enterprise Agreement 2020’ (Agreement).1 That Agreement was approved by the Commission on 6 November 2020 and was operative from 13 November 2020. Its nominal expiry date is 5 November 2024. [2] The application was filed without attaching a Form F24A – Declaration to support the termination of an agreement.. [3] On 3 August 2023 the Commission contacted the Applicant on its nominated telephone number (that of a Director, Mr Peter Serpentino) to request that he file the required Declaration. The Applicant advised that he would do so. [4] As the required information was not received, on 9 August 2023 my chambers sent correspondence to Mr Serpentino’s email address requiring that he file the material no later than 4.00 pm 10 August 2023. He was advised that the application was in danger of being dismissed as it was incomplete. [5] On 15 August 2023 the Form 24A was received. [6] My chambers then sent an email on 16 August 2023 to the Applicant requiring that he provide further information by no later than 4.00 pm Monday 21 August 2023. The material requested was: • details as to exactly what the employees were told at that meeting held with them on 1 August 2023, in particular what they were told of the effect of terminating the Agreement including on their wages and conditions of employment. [2023] FWC 2197 DECISION -- 1 of 3 -- [2023] FWC 2197 2 • How much time the employees were given to consider the termination prior to the vote on the termination occurring (noting that the vote occurred on 1 August 2023 as well). [7] As the required material was not provided, my chambers sent an email to the Applicant on 23 August 2023 advising that no material had been received and requiring that the material be provided no later than 4.00 pm Wednesday 30 August 2023. [8] No response has been received by the Commission. [9] Section 222 of the FW Act states: 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. [10] Section 223 sets out when the Commission must approve the termination of the Agreement: 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 -- 2 of 3 -- [2023] FWC 2197 3 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. [11] The documentary material before the Commission (in the form of the Declaration) does not satisfy me that the employees concerned were given a reasonable opportunity to decide if they wished to approve the termination of the Agreement. I know that employees attended a meeting on 1 August 2023 and that at that meeting all employees covered by the Agreement voted to approve the termination. However, without knowing what employees were told of the effect of termination of the Agreement it is not possible for me to conclude that all employees were given a reasonable opportunity to make a decision. [12] I am therefore not satisfied that the requirements of s.220(2)(b) have been met. There is, therefore, no basis under s.223 for the Commission to approve the termination. [13] The application of APP Painting Solutions is therefore dismissed. COMMISSIONER Printed by authority of the Commonwealth Government Printer <AE509475 PR765732> 1 AE509475 -- 3 of 3 --