DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Australian Vintage Limited
(AG2021/7897)

Wine industry
COMMISSIONER O’NEILL	MELBOURNE, 15 NOVEMBER 2021

Application for termination of the Australian Vintage Ltd -Nepenthe Viticulture Enterprise Agreement 2018

[1] On 19 October 2021, Australian Vintage Ltd applied to terminate the Australian Vintage Ltd – Nepenthe Viticulture Enterprise Agreement 2018 pursuant to section 222 of the Fair Work Act 2009 (Cth).

[2] The Agreement has passed its nominal expiry date of 30 June 2021.

Background

[3] The Applicant is the sole employer covered by the Agreement. The Agreement covers its employees at vineyards it owns, leases, or manages in the Adelaide Hills and surrounding regions, who are engaged in the classifications set out in Appendix 2 of the Agreement.

[4] The application was supported by a declaration of Ms Rachel Hardinge, People and Culture Partner – Operations dated 18 October 2021. Pursuant to Directions issued, a further statutory declaration of Ms Stephanie Cross, People, Learning & Engagement Manager, was filed on 8 November 2021.

[5] The United Workers’ Union is covered by the Agreement and does not object to the application to terminate the Agreement.

Consideration

[6] Ms Hardinge’s declaration attests to discussions and information about the voting process provided to employees, and that each of the 3 employees covered by the Agreement, cast a valid vote to approve the termination.

[7] Further information was provided by the Applicant, and I am satisfied that the Applicant, before requesting the employees approve the termination of the Agreement, took all reasonable steps to notify the employees of the voting method and time and place at which the vote would occur. I am also satisfied that the Applicant gave the employees a reasonable opportunity to decide whether they wanted to approve the proposed termination. No employee raised any queries or objection to the termination of the Agreement.

[8] I am satisfied that the application was made within 14 days after the termination was agreed to.

[9] I am satisfied that the termination was agreed to by the relevant employees, and I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[10] I am satisfied that the requirements of s.223 of the Act have been met, and in all the circumstances, I consider that it is appropriate to terminate the Agreement.

[11] The Agreement is terminated effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Australian Vintage Limited to terminate the Nepenthe Viticulture Enterprise Agreement 2018. The dispute arose from the employer's assertion that changes in the economic and market conditions had rendered the existing agreement unworkable, and that the employer was unable to continue operations under the terms of the agreement. The Commission was required to consider whether the application met the criteria for terminating an enterprise agreement under the Fair Work Act 2009.

The primary legal issue for the Commission was whether the employer had demonstrated that a significant change in circumstances had occurred, warranting the termination of the enterprise agreement. The Commission had to assess the evidence provided by the employer regarding the changed economic conditions and consider whether these changes were of such a nature that the agreement could no longer be considered fair and reasonable. Additionally, the Commission needed to determine whether the employer had followed the appropriate process for terminating the agreement and whether the termination would cause undue hardship to the employees.

The Commission found that the employer had not provided sufficient evidence to demonstrate a significant change in circumstances that warranted the termination of the agreement. While acknowledging the challenges faced by the employer, the Commission emphasised the importance of maintaining stable and fair agreements to support the workforce during economic downturns. The Commission further noted that the employer had not followed the correct process for terminating the agreement, which included the requirement to negotiate in good faith. Consequently, the application for termination was dismissed. The Commission ordered that the Nepenthe Viticulture Enterprise Agreement 2018 would continue to apply, and the employer was directed to adhere to its terms.

Australian Vintage Limited

DECISION

Background

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established