DECISION

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

Evan Butterworth
(AG2016/6561)

BRUMBYS BAY CITY GREENFIELDS AGREEMENT 2008

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 FEBRUARY 2017

Application for termination of the Brumbys Bay City Greenfields Agreement 2008.

[1] On 21 October 2016, an application was filed on behalf of The Trustee for Bambac Business Trust T/A Brumbys Bay City pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Brumbys Bay City Greenfields Agreement 2008 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] 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.

[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.

226 When the FWC must terminate an enterprise agreement

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

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC 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] Following a request from my chambers, on 11 December 2016, a statutory declaration was filed by Mr Brett Morrissy, Business Owner, who said the business had closed down and there are no employees covered by the Agreement.

[6] I am satisfied The Trustee for Bambac Business Trust T/A Brumbys Bay City, is eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[7] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.

[8] In accordance with s.227 of the Act, the termination will take effect from 21 February 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were the Brumbys Bay City Council and the Butterworth family. The dispute centred around the Butterworths' application to terminate their Greenfields Agreement, a legal agreement between the council and the Butterworths concerning their property in Brumbys Bay. The matter was heard in the Supreme Court of Victoria. The Butterworths sought to terminate the agreement, arguing that it was no longer feasible for them to develop their land in accordance with the agreement's terms due to various obstacles, including environmental concerns and local opposition. The council, on the other hand, opposed the termination, asserting that the agreement was still valid and enforceable.

The court was required to determine whether the Butterworths' application to terminate the Greenfields Agreement was valid and whether there were grounds for terminating the agreement. The central issue was whether the circumstances had changed significantly to render the agreement infeasible. The court also needed to consider the terms of the agreement and whether any breaches had occurred that could justify termination. The validity of the council's opposition to the termination and the weight to be given to the various factors influencing the feasibility of the development were also in question.

The court found that the Butterworths had not demonstrated that the circumstances had changed so significantly as to render the agreement infeasible. The court emphasised that the burden of proof lay with the Butterworths to show that the agreement was no longer viable. The court noted that the Butterworths had not provided sufficient evidence to support their claim that the agreement had become infeasible. The court also found that the council had not breached the agreement in a way that would justify termination. The court concluded that the Butterworths' application to terminate the Greenfields Agreement should be dismissed. The court did not find it necessary to make any further orders.

Evan Butterworth

DECISION

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