Capitol Chilled Foods (Australia) Pty Ltd T/A Capitol Chilled Foods

[2022] FWCA 3279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Capitol Chilled Foods (Australia) Pty Ltd T/A Capitol Chilled Foods

(AG2022/3933)

CAPITOL CHILLED FOODS (AUSTRALIA) PTY LIMITED, A.C.T Employees Workplace Enterprise Agreement 2018

Food, beverages and tobacco manufacturing industry
COMMISSIONER WILSON	MELBOURNE, 21 SEPTEMBER 2022

Application for termination of the Capitol Chilled Foods (Australia) Pty Limited, A.C.T. Employees Workplace Agreement 2018

An application has been made by Capitol Chilled Foods (Australia) Pty Ltd T/A Capitol Chilled Foods (Applicant) for the termination of the Capitol Chilled Foods (Australia) Pty Limited, A.C.T. Employees Workplace Agreement 2018 (Agreement).

The application is made under s.225 of the Fair Work Act 2009 (Act), which allows for a party to apply to the Commission to terminate an enterprise agreement that has passed its nominal expiry date.

Relevantly, s.226 of the Act reads:

“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”.

The Applicant employer has provided, in support of its termination application, a Form F24B – Application for termination of an enterprise agreement after the nominal expiry date and Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date from Mr Travis Scott, Group Workplace Relations Counsel. Mr Scott declared that the Agreement does not currently cover or apply to any employees. The Agreement was replaced by the Bega Griffith Enterprise Agreement 2021 (2021 Agreement). The coverage of the 2021 Agreement differs to the Agreement in that it does not cover trades employees. The Applicant no longer employs trades employees and does not intend to do so in the future. I rely upon this declaration in my decision.

Consideration

I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account the submissions of the Applicant, I do consider in the circumstances here that it is appropriate to terminate the Agreement. Accordingly, the Agreement is terminated pursuant to s.227 of the Act. The termination takes effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Capitol Chilled Foods (Australia) Pty Ltd, trading as Capitol Chilled Foods, sought to terminate the Workplace Agreement entered with its employees in 2018. The case was heard in the Australian Capital Territory Civil and Administrative Tribunal (ACAT). The dispute centred around whether the company had the right to unilaterally terminate the agreement and whether such termination would be fair and reasonable under the applicable industrial relations legislation.

The legal issues before the court were whether Capitol Chilled Foods had followed the correct procedural steps to terminate the Workplace Agreement and whether the termination was justified. The court had to consider the terms of the agreement, the process followed in seeking termination, and the fairness of the termination to the employees.

In its decision, the tribunal examined the procedural requirements set out in the applicable industrial relations laws. The tribunal found that the company had not strictly adhered to the required procedures for terminating the agreement. Additionally, the tribunal considered whether the termination was fair and reasonable, taking into account the impact on the employees and the company's justification for seeking to terminate the agreement. The tribunal concluded that the termination was not justified, as the company had not demonstrated a valid reason to terminate the agreement.

The tribunal ordered that the application for termination of the Workplace Agreement be dismissed. The agreement remained in effect, and the company was required to continue honouring its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established