Bidfood (Victoria) Pty Ltd

[2020] FWCA 5895

[2020] FWCA 5895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bidfood (Victoria) Pty Ltd
(AG2020/3224)

BIDFOOD MELBOURNE WAREHOUSE - ENTERPRISE AGREEMENT 2017

Storage services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 5 NOVEMBER 2020

Application for termination of the Bidfood Melbourne Warehouse - Enterprise Agreement 2017.

[1] Bidfood (Victoria) Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the Bidfood Melbourne Warehouse - Enterprise Agreement 2017 (Agreement). 1 The Agreement is expressed to cover the Applicant and its employees classified under the Agreement working at 548 Clayton Road, Clayton Victoria (Clayton premises) and the National Union of Workers.2

[2] The Agreement has passed its nominal expiry date. 3

[3] Section 225 of the Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[4] Section 226 of the Act provides:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[5] In support of the application, Mr G Convery of the Applicant provided a declaration dated 26 October 2020. The declaration states, inter alia, that the Applicant has ceased operating from the Clayton premises and the remaining work has been transferred to another location. In the result, there are no employees covered by the Agreement.

[6] As mentioned above, the National Union of Workers (now the United Workers’ Union) is an organisation which is covered by the Agreement. In correspondence to my Chambers on 4 November 2020, the United Workers’ Union advised that it did not object to termination of the Agreement.

[7] There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and taking into account the material contained in the employer’s declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. Given my conclusions I must terminate the Agreement.

[8] The termination will operate from 5 November 2020.

[9] An order giving effect to this decision is separately issued in PR724251.

DEPUTY PRESIDENT

 1   AE428118

 2   Ibid at cl 1.3

 3   Ibid at cl 1.4.2

Printed by authority of the Commonwealth Government Printer

<AE428118  PR724250>