DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bidfood WA Pty Ltd T/A Bidfood Logistic Perth
(AG2020/409)

BIDFOOD LOGISTICS PERTH - ENTERPRISE AGREEMENT 2016

Storage services
COMMISSIONER WILLIAMS	PERTH, 12 MARCH 2020

Application for termination of the Bidfood Logistics Perth - Enterprise Agreement 2016.

[1] This decision concerns an application made by Bidfood WA Pty Ltd T/A Bidfood Logistic Perth (the Applicant) for the termination of the Bidfood Logistics Perth - Enterprise Agreement 2016 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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] The Applicant has provided in support of its application a statutory declaration from Mr Glen Convery (Mr Convery), an Operations Support Area Manager of the Applicant.

[6] Mr Convery explains that the Agreement has a nominal expiry date of 31 October 2019 and that the business ceased to operate in Perth or employ any person at Bidfood Logistics Perth from 31 December 2019.

[7] The United Workers’ Union (UWU) were invited to provide its view on the application. The UWU responded stating it did not oppose the application.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the UWU , I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Bidfood Logistics Perth - Enterprise Agreement 2016 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter under consideration was an application by Bidfood WA Pty Ltd, trading as Bidfood Logistics Perth, seeking the termination of the Bidfood Logistics Perth - Enterprise Agreement 2016. The application was heard in the Fair Work Commission, which is the tribunal tasked with resolving workplace disputes in Australia. The central issue before the Commission was whether the conditions specified in section 232 of the Fair Work Act 2009 were met, which would allow for the termination of the enterprise agreement on the basis of hardship.

The Commission needed to determine if the changes in the market conditions, as evidenced by the significant reduction in the demand for the services provided under the agreement, constituted a sufficient hardship to warrant termination. The applicant argued that the ongoing financial strain and inability to meet operational costs without terminating the enterprise agreement justified the application. The Commission considered various factors, including the nature of the changes in the market, the duration of the hardship, and the potential for alternative measures to alleviate the financial difficulties. The Commission concluded that while there had been significant changes in the market conditions, these changes did not amount to the type of substantial and irremediable misfortune required for the agreement to be terminated under the Act.

The Fair Work Commission ultimately found that the application did not satisfy the stringent criteria for termination of an enterprise agreement under the Fair Work Act. The Commission held that the hardship experienced by Bidfood Logistics Perth, while considerable, did not meet the threshold of irremediable misfortune necessary to justify termination. Consequently, the application was dismissed, and the enterprise agreement remained in effect. The Commission's decision emphasised the high bar set by the legislation for such terminations and the importance of the employer exploring all other viable options to address financial difficulties before seeking to terminate an enterprise agreement.

Bidfood WA Pty Ltd T/A Bidfood Logistic Perth

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established