s.222 - Enterprise agreement

BOORTMALT AUSTRALIA PTY LTD DELACOMBE OPERATOR ENTERPRISE AGREEMENT 2023

Application for termination of the Boortmalt Australia Pty Ltd Delacombe Operator Enterprise Agreement 2023

[1] This decision concerns an application made by Boortmalt Australia Pty Ltd (the company) to terminate the Boortmalt Australia Pty Ltd Delacombe Operator Enterprise Agreement 2023 (the Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees covered by the Agreement to approve the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date is 30 December 2026.

[3] I note that the Agreement covers the United Workers' Union (the UWU).

[4] The relevant provisions of the Act are as follows:

'222 Application for the FWC's approval of a termination of an enterprise agreement

(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.

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

(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. 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.

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.'

[5] Based on the material provided to the Fair Work Commission by the company, including the statutory declaration of Ms Tracey Fernandez filed with the application, I am satisfied that each of the requirements in s.223 of the Act have been met. I am satisfied that the company complied with s.220(2) by giving employees a reasonable opportunity to decide whether they want to approve the termination, and that the termination was agreed to in accordance with s.221(1), as a majority of employees who cast a valid vote approved the termination. The company provided further information advising the Agreement termination was an employee request with the proviso that the redundancy entitlements and working hours in the Agreement be grandfathered and continue to apply. I am satisfied that there are no other reasonable grounds for believing the employees have not agreed to the termination.

[6] Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement. The termination will operate from 9 January 2026.

[7] An order giving effect to this decision will be issued separately.

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