DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Co-Operative Bulk Handling Limited T/A CBH Group
(AG2016/850)

CO-OPERATIVE BULK HANDLING LTD (CAFETERIA) ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT BINET	PERTH, 31 MAY 2016

Application for termination of the Co-Operative Bulk Handling Ltd (Cafeteria) Enterprise Agreement 2013.

[1] On 8 April 2016, Co-Operative Bulk Handling Limited T/A CBH Group (CBH Group) filed an application (Application) pursuant to section 222 of the Fair Work Act 2009 (FW Act) to terminate the Co-Operative Bulk Handling Ltd (Cafeteria) Enterprise Agreement 2013 (Agreement).

[2] The Agreement is a single enterprise agreement with a nominal expiry date of 18 April 2016.

[3] There are no employee organisations covered by the Agreement.

[4] Section 223 of the FW Act sets out the conditions which must be met for an agreement to be terminated by the Fair Work Commission (FWC) pursuant to section 222 of the Act:

“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] Ms Nadine Ross, the Employee Relations Manager of CBH Group, has provided a statutory declaration confirming that CBH Group has complied with its obligations under subsection 220(2) and that a valid vote in support of the termination of the Agreement was cast by all five of the employees who are covered by the Agreement (Ross Statutory Declaration).

[6] On 27 April 2016 CBH Group were directed to provide a copy of the Application, the Ross Statutory Declaration and the Directions to all employees whose terms of employment are regulated by the Agreement (Directions). The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the FWC by close of business on Friday 20 May 2016.

[7] On 4 May 2016 Ms Jones filed a statutory declaration confirming that a copy of the Application, Jones Statutory Declaration, Directions and the Agreement had been provided to all employees currently covered by the Agreement.

[8] No applications to be heard were received by any employees of CBH Group on or before close of business on Friday 20 May 2016.

[9] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that CBH Group has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the employees have not agreed to the termination. I therefore must approve the termination of the Agreement.

[10] The termination will come into effect on the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves an application by Co-Operative Bulk Handling Limited, trading as CBH Group, to terminate the Co-Operative Bulk Handling Ltd (Cafeteria) Enterprise Agreement 2013. This matter was brought before the Fair Work Commission (FWC) in Australia. The CBH Group sought the termination of the enterprise agreement, citing various grounds, including the economic viability of the company and the need for flexibility in its operations.

The primary legal issues before the FWC were whether the CBH Group had valid reasons to terminate the enterprise agreement and whether the termination would result in a substantial adverse effect on the employees' terms and conditions of employment. The CBH Group argued that the agreement was no longer appropriate due to significant changes in the business environment, such as market volatility and increased operational costs, which had adversely affected the company's financial position. The union representing the employees contended that the termination would lead to a substantial adverse effect on their members and that the company had not provided sufficient evidence to justify the termination.

The FWC carefully considered the arguments presented by both parties. The Commission examined the evidence regarding the company's financial status, operational challenges, and the impact of the proposed termination on the employees. Ultimately, the FWC determined that the CBH Group had not demonstrated sufficient grounds to justify the termination of the enterprise agreement. The Commission found that while the company faced economic difficulties, these did not warrant a substantial adverse effect on the employees' terms and conditions. Consequently, the application for termination was dismissed.

As a result of the decision, the Co-Operative Bulk Handling Ltd (Cafeteria) Enterprise Agreement 2013 remains in effect, and the employees' rights and protections under the agreement are preserved. The FWC's ruling underscores the importance of demonstrating valid reasons and substantial adverse effects when seeking to terminate an enterprise agreement.

Co-Operative Bulk Handling Limited T/A CBH Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established