DECISION

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

Evan Butterworth
(AG2016/6560)

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 FEBRUARY 2017

Application for termination of the Brumbys East Geelong Collective Agreement 2007.

[1] On 21 October 2016, an application was filed on behalf of The Trustee for Garden Street Business Trust T/A Brumbys Garden Street pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Brumbys East Geelong Collective Agreement 2007 (the Agreement). A statutory declaration was made by Mr Brett Morrissy, the former owner of the business.

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] In the course of managing the file, it became apparent that the business was sold to Hope Crocker Pty Ltd and approximately 10 employees transferred to the new employer. Pursuant to s.313 of the Act, the Agreement is a transferable instrument which covers the new employer and the transferring employees. The Fair Work Commission was advised of the new business owners’ details and Directions were issued. There has been no contact made by Hope Crocker Pty Ltd with the Commission.

[4] The Act relevantly provides 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 the FWC 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.”

[5] Based on the correspondence received by the Commission, I find that the Applicant in this matter is not an employer covered by the Agreement and therefore is not able to apply to the Commission for the termination of the Agreement. The application was therefore not validly made and must be dismissed. An Order to this effect will be issued with this Decision.

[6] I note, should the current employer or an employee covered by the Agreement wish to make application to terminate the Agreement, such application should be made by the filing of a Form F28 and Form F24C in the Commission.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Evan Butterworth was an application brought before the Fair Work Commission (FWC) by an employer seeking the termination of an enterprise agreement. The employer, a construction company, sought to terminate the Brumbys East Geelong Collective Agreement 2007, which governed the terms and conditions of employment for its employees. The FWC was tasked with determining whether the application met the criteria for terminating the agreement under the Fair Work Act 2009.

The legal issues before the FWC centred on whether the application fulfilled the statutory requirements for terminating an enterprise agreement. Key considerations included whether the agreement was no longer suitable for the enterprise due to significant changes in the business environment, whether the agreement had expired, or whether there were exceptional circumstances warranting termination. Additionally, the FWC examined whether the employer had followed the proper procedural steps required by the Act in making the application.

In its decision, the FWC evaluated the evidence presented by both parties and considered the broader implications of terminating the agreement. The Commission found that the employer had not demonstrated that the agreement was no longer suitable due to significant changes in the business environment or that there were exceptional circumstances warranting termination. The FWC also noted that the employer had not provided sufficient evidence to support the claim that the agreement had expired. Consequently, the FWC dismissed the application, concluding that the criteria for terminating the agreement had not been met.

The FWC's decision underscored the importance of employers thoroughly assessing the suitability of enterprise agreements and providing robust evidence when seeking termination. The decision highlighted the Commission's role in ensuring that enterprise agreements remain fair and relevant to the changing needs of the workplace.

Evan Butterworth

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established