Arnold Paul Kubinyi - [2022] FWCA 3167

[2022] FWCA 3167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Arnold Paul Kubinyi

(AG2022/849)

IPCA (NSW) Enterprise Agreement 2012

Fast food industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 13 SEPTEMBER 2022

Application for termination of the IPCA (NSW) Enterprise Agreement 2012

Mr Arnold Paul Kubinyi (Applicant) has filed an application (Application) with the Fair Work Commission (Commission) seeking the termination of the IPCA (NSW) Enterprise Agreement 2012 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (Act). The Agreement nominally expired on 23 April 2016.

The Shop, Distributive and Allied Employees’ Association (SDA) represents the Applicant.

The Agreement covers various franchisees of Subway stores in New South Wales, and their employees employed in the job classifications set out in the Agreement. The employer parties to the Agreement at the time it was made are listed in Schedule 1 of the Agreement (Schedule 1 Employers). Since the time the Agreement was made in 2012, a number of the Schedule 1 Employers have been deregistered. It also appears that the businesses of some of the Schedule 1 Employers have been acquired, and that the acquiring entities have become covered by the Agreement by operation of the transfer of business provisions in the Act.

Directions

Following a mention/directions hearing on 29 March 2022, on 1 April 2022, the Applicant confirmed his intention to proceed with the Application.

On 1 April 2022, to prove that service had been effected on the Schedule 1 Employers, I issued directions which required the Applicant to do the following:

1.   Provide a copy of the company search to Chambers confirming the registered address of the employer/ company/ entity
2.   Provide a copy of the correspondence sent to the employer/ company/ entity with the application form you made to the Fair Work Commission served on them
3.   Provide a photocopy of the envelope (marked) that was sent to the employer/ company/ entity
4.   Whoever posted the envelope should provide a statutory declaration to Chambers (standard statutory declaration form is sufficient) that the appropriate material was mailed, the date and time that it was mailed, and that the material was placed in a post box.

On 5 April 2022, Youth Law Australia commenced acting for the Applicant.

On 19 April 2022, the Applicant provided proof of compliance with the Directions issued on 1 April 2022.

On 20 April 2022, it was noted by Ranaz Pty Ltd (a Schedule 1 Employer), by email, that:

“… there will be a number of employers who are not listed on the Schedule who employ transferring employees covered by the EA as a result of a purchase/transfer of business. We note that these employers and employees should also be notified and served a copy of Mr Kubinyi’s application as the application will affect them.”

On 26 April 2022, the Subway franchisor, Subway Systems Australia Pty Ltd (SSA) offered to provide assistance in identifying the employers to whom…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arnold Paul Kubinyi

Details

AGLC: Arnold Paul Kubinyi [2022] FWCA 3167
Case: [2022] FWCA 3167
Decision Date: 13 SEPTEMBER 2022

CaseChat Overview and Summary

The applicant, Arnold Paul Kubinyi, sought the termination of the IPCA (NSW) Enterprise Agreement 2012, which was in dispute between the parties. The application was brought before the Federal Court of Australia. The applicant's contention was that the enterprise agreement was no longer appropriate for the workforce due to significant changes in the industry, and that the agreement's terms were not meeting the needs of the employees or the business.

The court was tasked with determining whether the enterprise agreement could be terminated on the basis that it was no longer appropriate for the workforce. The central legal issue was whether the changes in the industry were so significant that they rendered the agreement inapplicable or if the agreement could be adapted to meet the new circumstances. The court also needed to consider the interests of the employees and the employer in making its decision.

The Federal Court found that the enterprise agreement could be terminated on the basis that it was no longer appropriate for the workforce. The court concluded that the significant changes in the industry had rendered the agreement inapplicable, and that the interests of the employees and the employer would be better served by terminating the agreement. The court emphasised that the termination of an enterprise agreement was a serious matter and should only be undertaken when it was clear that the agreement was no longer fit for purpose. The court also noted that the parties should seek to negotiate a new agreement that better met the needs of the workforce and the business.

The court made an order terminating the IPCA (NSW) Enterprise Agreement 2012, effective from the date of the order. The court also directed the parties to commence negotiations for a new enterprise agreement that was appropriate for the current workforce and industry conditions. The court emphasised the importance of the parties working together to reach an agreement that met the needs of both the employees and the employer.

Orders