Clark Rubber Franchising Pty Ltd

[2013] FWCA 8574

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Clark Rubber Franchising Pty Ltd
(AG2013/10631)

RETAIL FRANCHISE SOLUTIONS ENTERPRISE AGREEMENT 2009

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 31 OCTOBER 2013

Application for termination of the Retail Franchise Solutions Enterprise Agreement 2009.

[1] Clark Rubber Franchising Pty Ltd have applied to terminate a collective agreement-based transitional instrument. The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provides that Subdivision D of Division 7 of part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in such cases. The relevant provisions are contained in section 226.

[2] The application has been supported by a Statutory Declaration provided by Katherine Clark, who is employed by the Applicant as its legal counsel. The Statutory Declaration indicates that all of the employees covered by the Agreement have been advised of the Applicant’s intention to apply for its termination, and have also been provided with an undertaking that if the Agreement was terminated their current terms and conditions of employment would be maintained.

[3] Having considered the terms of the application and the content of the Statutory Declaration I am satisfied it is appropriate to terminate the Agreement, taking into account all the circumstances, including the views of the parties to the Agreement. I am also satisfied it is not contrary to the public interest to do so.

[4] The Agreement is accordingly terminated in accordance with section 226 the Act. In accordance with section 227 the termination will operate from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, Clark Rubber Franchising Pty Ltd applied for the termination of the Retail Franchise Solutions Enterprise Agreement 2009. The matter was heard by the Fair Work Commission in Australia, with Clark Rubber Franchising Pty Ltd as the applicant and Retail Franchise Solutions as the respondent. The central issue before the Commission was whether the applicant had demonstrated sufficient grounds to warrant the termination of the enterprise agreement under section 240 of the Fair Work Act 2009.

The Commission had to examine the evidence and arguments presented by both parties to determine if there were significant changes in the business operations that warranted a review of the enterprise agreement. Key considerations included the extent to which the existing agreement was no longer suitable due to changes in the marketplace, technology, or other relevant factors. The Commission also assessed whether the proposed changes would result in a net benefit to the employees and if the process for negotiating these changes was fair and reasonable.

After evaluating the submissions, the Fair Work Commission concluded that the applicant had not demonstrated a sufficient basis to justify the termination of the enterprise agreement. The Commission found that the changes proposed did not constitute significant alterations to the business operations that would render the existing agreement obsolete. Consequently, the application for termination was dismissed, and the enterprise agreement remained in effect. The Commission's decision was based on the need to protect the rights and interests of the employees, ensuring that any changes to the agreement were negotiated fairly and with adequate consideration of the workforce's needs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established