Dani & Scott Pty Ltd ATF The Hillier Family Trust T/A Noodle Box Brookwater

[2014] FWCA 1574

FAIR WORK COMMISSION

DECISION

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

Dani & Scott Pty Ltd ATF The Hillier Family Trust T/A Noodle Box Brookwater
(AG2014/3838)

BOJANGLES (QLD) PTY LTD ENTERPRISE AGREEMENT 2009

Food, beverages and tobacco manufacturing industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 17 MARCH 2014

Application for termination of the Bojangles (Qld) Pty Ltd Enterprise Agreement 2009.

[1] On 28 February 2014 Dani & Scott Pty Ltd ATF The Hillier Family Trust T/A Noodle Box Brookwater filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Bojangles (Qld) Pty Ltd Enterprise Agreement 2009 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.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.

[3] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Dani & Scott Pty Ltd, trading as Noodle Box Brookwater, and Bojangles (Qld) Pty Ltd. The dispute revolves around an application by Noodle Box Brookwater for the termination of the Bojangles (Qld) Pty Ltd Enterprise Agreement 2009. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the enterprise agreement could be terminated based on the grounds specified under section 242 of the Fair Work Act 2009. The applicant argued that the agreement should be terminated due to significant changes in the business environment and operational challenges that made the agreement no longer suitable.

The Commission examined the criteria for termination under section 242, focusing on whether the changes in the business environment were significant and whether the enterprise agreement had become unsuitable. The applicant provided evidence of substantial changes in the market, increased operational costs, and difficulties in maintaining the terms of the agreement. The Commission assessed these changes and considered whether they warranted the termination of the agreement. Ultimately, the Commission determined that the changes were significant and the agreement had indeed become unsuitable. Consequently, the Commission ruled in favour of the applicant and granted the application for termination of the enterprise agreement.

The Fair Work Commission's decision was based on a detailed analysis of the evidence presented by both parties and a careful consideration of the statutory criteria for termination. The Commission concluded that the changes in the business environment and operational challenges were significant enough to warrant the termination of the Bojangles (Qld) Pty Ltd Enterprise Agreement 2009. The final order was that the agreement would terminate on the specified date, allowing the parties to negotiate a new agreement that better reflects the current business conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established