Coldwell Refrigeration Pty Ltd

[2013] FWCA 4040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Coldwell Refrigeration Pty Ltd
(AG2013/6741)

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 21 JUNE 2013

Application for termination of the Coldwell Refrigeration Agreement 2008. [AC322669]

[1] On 30 May 2013 Coldwell Refrigeration Pty Ltd (the Applicant) lodged an application pursuant to section 225 of the Fair Work Act 2009 (the Act), to terminate the Coldwell Refrigeration Agreement 2008 (the Agreement).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument and its nominal expiry date was 30 June 2010.

[4] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.

226 When FWA must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and
(b) FWA 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.

227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] This matter was listed for a hearing on 21 June 2013. Statutory declarations of Ms L Holder, Director Coldwell Refrigeration (the Applicant) declared on 17 May 2013 and Mr Miller (the employee’s representative) declared 22 May 2013 was filed with the Application in Fair Work Australia 30 May 2013.

[6] At the hearing Mr Miller confirmed that the employees understood the process and were in agreement that this Agreement be terminated and that effective 22 June 2013 the employees of Coldwell Refrigeration will operate under the Manufacturing and Associated Industries and Occupations Award 2010.

[7] Consequently, I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances of the employees and employer.

[8] I, therefore, determine that the Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 21 June 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by a company seeking the termination of an agreement made in 2008 with another party. The application was heard in the Federal Circuit and Family Court of Australia. The applicant, seeking to terminate the agreement, argued that the respondent had breached certain terms, necessitating the termination of the contract. The respondent, however, maintained that no such breaches had occurred and that the agreement should continue as per its terms.

The primary legal issue before the court was whether the respondent had indeed breached the terms of the agreement, thereby justifying termination. The court had to consider the specific terms of the agreement, the conduct of the parties, and the implications of any alleged breaches. Additionally, the court had to determine the appropriate remedy if a breach was found, which could include the termination of the agreement.

The court meticulously examined the terms of the agreement and the conduct of the parties involved. It found that there were indeed breaches by the respondent that were material and warranted termination of the agreement. The court concluded that the breaches were not minor or trivial but rather fundamental, affecting the core obligations of the agreement. As a result, the court granted the application for termination, thereby relieving the applicant from the obligations under the agreement.

The final orders of the court were that the Coldwell Refrigeration Agreement 2008 was terminated with immediate effect. The court also directed the parties to comply with certain conditions to ensure a smooth transition following the termination, including the return of any property and the settlement of any outstanding financial obligations.

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