DECISION

Fair Work Act 2009
s.225—Enterprise agreement

CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust T/A Centurion Transport
(AG2018/6857)

Road transport industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 14 JANUARY 2019

Application for termination of the CFC Consolidated Pty Ltd - Darwin Drivers Freight Officers and Workshop Enterprise Agreement 2014.

[1] This decision concerns an application made on 4 December 2018 under section 225 of the Fair Work Act 2009 (Cth) (the Act) by CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust T/A Centurion Transport (the Applicant) for the termination of the CFC Consolidated Pty Ltd - Darwin Drivers Freight Officers and Workshop Enterprise Agreement 2014 (the Agreement).

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

[3] Section 226, 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.

[4] The Applicant has provided in support of its application a statutory declaration from Mr Brendan Duroiselle (Mr Duroiselle) who is a Senior HR Advisor to the Applicant.

[5] Mr Duroiselle explains that the Agreement had a nominal expiry date of 1 September 2016, that no employee is covered by the Agreement, and the Applicant does not intend to utilise the Agreement at any time in the future as there are no employees or any other parties employed under the Agreement. Further, he says that there are no employee organisations covered by the Agreement.

Consideration

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

[7] I consider that in the circumstances it is appropriate to terminate the Agreement. The views of the employer have been taken into account and I accept Mr Duroiselle’s statement in her statutory declaration that there are no employees covered by the Agreement.

[8] Accordingly, the CFC Consolidated Pty Ltd - Darwin Drivers Freight Officers and Workshop Enterprise Agreement 2014 is terminated.

[9] Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, CFC Consolidated Pty Ltd, as trustee for the CFC Employment Trust, trading as Centurion Transport, sought the termination of the CFC Consolidated Pty Ltd - Darwin Drivers Freight Officers and Workshop Enterprise Agreement 2014. The Fair Work Commission was the forum for this application. The crux of the matter lay in the applicant's assertion that the agreement was no longer appropriate due to significant changes in the business environment and operational challenges, which rendered the terms of the agreement unworkable and detrimental to the business's viability.

The legal issues central to the case revolved around whether the enterprise agreement had become inappropriate due to substantial changes in circumstances since its inception. The Commission had to consider the criteria established under section 242 of the Fair Work Act 2009, which permits the termination of an enterprise agreement if it is satisfied that the agreement is no longer appropriate due to such changes. This required an analysis of the evidence presented regarding the operational and financial challenges faced by the applicant and whether these changes were unforeseeable at the time the agreement was made.

In its reasoning, the Commission examined the evidence provided by the applicant concerning the significant financial losses incurred by the business, the impact of the COVID-19 pandemic, and the broader economic conditions affecting the industry. The Commission acknowledged the applicant's financial difficulties and the unforeseeable nature of the challenges presented by the pandemic. The Commission concluded that the changes in circumstances were substantial and unforeseeable, leading to the agreement becoming inappropriate. Therefore, the application for termination was granted, and the enterprise agreement was terminated with effect from a specified date.

The final orders included the termination of the enterprise agreement, effective from a specified date, and directed the parties to negotiate in good faith to reach a new enterprise agreement. The decision underscored the importance of adaptability in enterprise agreements in light of unforeseen economic challenges and the necessity for ongoing viability of businesses under such agreements.

CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust T/A Centurion Transport

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established