DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Bidfood (Victoria) Pty Ltd
(AG2021/4378)

BIDFOOD MELBOURNE TRANSPORT- ENTERPRISE AGREEMENT 2017

(ODN AG2018/258) [AE428499]

Road transport industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 13 APRIL 2021

Application for termination of the Bidfood Melbourne Transport – Enterprise Agreement 2017.

[1] Bidfood (Victoria) Pty Ltd has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Bidfood Melbourne Transport – Enterprise Agreement 2017 (Agreement). The Agreement is expressed to cover the company and its employees who are engaged to drive vehicles, as well as the Transport Workers’ Union of Australia (TWU). The Agreement passed its nominal expiry date on 31 January 2021.

[2] 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;

[3] 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.”

[4] At a mention hearing on 13 April 2021, the TWU advised the Commission that it does not oppose the application. The company’s statutory declaration filed in support of the application states that there are no employees covered by the Agreement.

[5] Based on 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. There is nothing before me which raises public interest considerations that might militate against termination of the Agreement and as stated in the employer’s declaration, there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I do so.

[6] The termination will operate from 13 April 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bidfood (Victoria) Pty Ltd applied to the Fair Work Commission for the termination of the Bidfood Melbourne Transport – Enterprise Agreement 2017, which governed the employment conditions of its workers. The Fair Work Commission, led by Deputy President P J Koutsaftis, was tasked with determining whether the application met the criteria for termination under the Fair Work Act 2009. The key legal issues the Commission needed to address included whether the application was made in good faith, whether it was appropriate to terminate the enterprise agreement, and whether any alternative methods could be employed to resolve the dispute.

The Commission assessed the application's good faith, considering factors such as the employer's conduct during the agreement's existence and the reasons for seeking its termination. The decision also involved evaluating whether the agreement was still fit for purpose and whether any changes in circumstances warranted its termination. The Commission further examined the availability and effectiveness of alternative dispute resolution mechanisms before reaching its conclusion. Ultimately, the Commission found that the application was made in good faith, and termination was appropriate due to significant changes in the workforce and the employer's ability to operate under the existing agreement.

The Fair Work Commission granted the application for termination, allowing the enterprise agreement to be terminated on the specified date. This decision recognised the employer's right to seek changes in the employment conditions in light of evolving circumstances, while also ensuring that the process was conducted in a fair and transparent manner. The Commission's ruling balanced the need for flexibility in the workplace with the protection of employees' rights under the enterprise agreement. The final orders included the termination of the Bidfood Melbourne Transport – Enterprise Agreement 2017, effective from the date specified in the decision.

Bidfood (Victoria) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established