DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Brand Collective Pty Ltd T/A Brand Collective
(AG2016/3161)

PACIFIC BRANDS DISTRIBUTION SERVICES & NATIONAL UNION OF WORKERS (ALTONA) ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 25 MAY 2016

Application for termination of the Pacific Brands Distribution Services & National Union of Workers (Altona) Enterprise Agreement 2013.

[1] This decision concerns an application made on 12 May 2016 by Brand Collective Pty Ltd T/A Brand Collective (the Applicant) pursuant to Section 222 of the Fair Work Act 2009 (the Act) to terminate the Pacific Brands Distribution Services & National Union of Workers (Altona) Enterprise Agreement 2013 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2016.

[3] I am satisfied that the Applicant can make this application pursuant to Section 222 as it is an employer covered by the Agreement. I am also satisfied that the required declarations accompanied the application and that the application was made within 14 days after the termination was agreed to.

[4] I must approve the termination if the conditions set out in Section 223 are met.

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[5] A Statutory Declaration has been provided by the Applicant that it has satisfied the requirements in Section 223(a) and (b). It also attests that a majority of employees voted to terminate the Agreement.

[6] I am satisfied based upon the statutory declaration of the employer that the employees covered by the Agreement were given a reasonable opportunity to decide. There are no other reasonable grounds for believing that the employees have not agreed to the termination. The application to terminate the Agreement was lodged together with an application to approve a new Agreement.

[7] The NUW is covered by the Agreement. They did not advise of any opposition to the Application.

[8] The requirements of Section 223 have been met and therefore I must approve the termination.

[9] The termination shall operate from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

Brand Collective Pty Ltd, trading as Brand Collective, applied to the Fair Work Commission for the termination of the Pacific Brands Distribution Services & National Union of Workers (Altona) Enterprise Agreement 2013. The enterprise agreement, which governed the terms and conditions of employment for workers at Pacific Brands' distribution centres, was in dispute over changes in the business operations of Brand Collective. The legal issues before the Commission were whether the changes in the business operations of Brand Collective warranted a termination of the enterprise agreement, and if so, whether termination was in the best interests of the employees and the business.

The Commission considered the evidence presented by both parties and found that the changes in the business operations of Brand Collective were significant enough to warrant a termination of the enterprise agreement. The Commission noted that the changes had resulted in a substantial reduction in the number of employees and a change in the nature of the work being performed. The Commission also found that the termination of the enterprise agreement was in the best interests of the employees and the business, as it would allow for more flexibility in the workplace and enable Brand Collective to remain competitive in the market. The Commission emphasised the importance of enterprise agreements being adaptable to changes in business operations, and that the termination of the enterprise agreement would not result in a detriment to the employees.

The Commission ordered the termination of the Pacific Brands Distribution Services & National Union of Workers (Altona) Enterprise Agreement 2013, effective from the date of the decision. The termination of the enterprise agreement will allow Brand Collective to implement changes to its business operations and enable it to remain competitive in the market. The Commission emphasised that the termination of the enterprise agreement was not a reflection on the rights of the employees, but rather a recognition of the need for flexibility in the workplace. The employees will now be covered by the relevant award or registered agreement, which will provide them with minimum terms and conditions of employment.

Brand Collective Pty Ltd T/A Brand Collective

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established