Section 223(a) - reasonable opportunity to decide

[25] Subsection 223(a) of the FW Act requires the FWC to be satisfied that Joyce Krane has complied with subsection 220(2) of the FW Act. Section 220(2) requires an employer to take a number of steps before requesting that employees approve a proposed termination of an enterprise agreement by voting for it.

[26] Subsection 220(2)(a) requires that the employer take all reasonable steps to notify employees of the time and place at which the vote will occur, and the voting method that will be used. To this end, a high proportion of employees voting is strong evidence that the employer took all such reasonable steps.[1]

[27] I am satisfied that Joyce Krane has complied with subsection 220(2)(a). An email was issued on 5 March 2025 which advised the Employees of the time and place at which the vote was to occur and the voting method used. All of the Employees participated in the ballot.

[28] Subsection 220(2)(b) of the FW Act requires the employer to give the relevant employees a reasonable opportunity to decide whether they want to approve the proposed termination. The subsection does not otherwise prescribe any particular steps to be taken to give effect to a "reasonable opportunity". An employer is not expressly required to explain the effects of the termination on the employees' terms and conditions. However, the lack of any explanation or misleading or incorrect explanations may be relevant to the FWC's assessment of whether there has been a "reasonable opportunity".[2]

[29] I am satisfied that Joyce Krane gave the relevant employees a reasonable opportunity to decide whether to terminate the Agreement in the sense contemplated by s 220(2). Employees were notified of the proposed termination process on 28 February 2025. Joyce Krane also explained to relevant employees the impact of the termination and effects on their conditions of employment in correspondence and meetings held on 4 and 5 March 2025.

[30] The relevant employees voted on the proposed termination on 7 March 2025. They had a sufficient period in which to consider whether to agree to the proposed termination, during which time they had the opportunity to put further questions to Joyce Krane and to seek advice. All of the Employees participated in the ballot and all voted in favour of the termination. These factors all point toward a reasonable opportunity having been granted.[3]

[31] Section 223(b) of the FW Act relevantly requires the FWC to be satisfied that the termination was agreed to in accordance with subsection 221(1). Under section 221(1), the termination of a single enterprise agreement is agreed when a majority of employees who cast a valid vote approve the termination.

[32] A total 7 employees were covered by the Agreement and employed at the time of the request to vote to terminate the Agreement. Of the seven, all voted in favour of terminating the Agreement.

[33] Section 223(c) requires the FWC to be satisfied that there are no other reasonable grounds for believing that the termination was not agreed by the majority of Employees.

[34] The FWC cannot be satisfied of that negative proposition ("no other reasonable grounds") without considering whether there are "reasonable grounds" for believing so. In the absence of finding "reasonable grounds" for believing so, the FWC will inevitably be satisfied that there are "no other reasonable grounds".[4]

[35] All Employees who cast a valid vote, voted in favour of terminating the Agreement. They did so after being provided with:

1. a detailed explanation of the process for and consequences of the termination of the Agreement;

[36] Employees were notified of the opportunity to seek to be heard in relation to the Application and choose not to do so.

[37] In those circumstances, I am satisfied that there are no other grounds - reasonable or otherwise - for believing that the Employees have not agreed to the termination of the Agreement.

Section 223(d) - appropriate to approve termination

[38] Subsection 223(d) requires the FWC to consider it appropriate to approve the termination taking into account the views of any employee organisation(s) covered by the agreement. There are no employee organisations covered by the Agreement.

Section 224 - date of operation of any decision to terminate

[39] 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. Joyce Krane submits that any decision to approve the termination of the Agreement should come into effect on the date of the decision to approve the termination of the Agreement.

[40] Based on the material that is before me, and in the absence of any request from an Employee to be heard, I am satisfied that Joyce Krane has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the Employees have not agreed to the termination. In these circumstances, I must approve the termination of the Agreement.

[41] The termination will come into effect on the date of this decision. An order to this effect will be issued with this Decision.[5]

[1] Re Application by Carl Zeiss Vision Australia Holdings Limited [2017] FWCA 5825 at [37].

[2] Re Application by Barminco Ltd [2015] FWCA 219 at [20]. See also Re Application by Advanced Plumbing and Drains Pty Ltd T/as Advance Plumbing and Drains [2015] FWCA 8740 at [26] and Re Application by Carl Zeiss Vision Australia Holdings Limited [2017] FWCA 5825 at [40].

[3] See Advanced Plumbing and Drains Pty Ltd [2015] FWCA 8740 at [32].

[4] CFMEU v CSRP Pty Ltd [2017] FWCFB 2101 at [27] (Hatcher VP, Gostencnik DP, Bissett C).

[5] PR785951.

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