DECISION

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

Evan Butterworth
(AG2016/6565)

BRUMBYS MINERVA ROAD COLLECTIVE AGREEMENT 2007

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 FEBRUARY 2017

Application for termination of the Brumbys Minerva Road Collective Agreement 2007.

[1] On 21 October 2016, an application was filed on behalf of The Trustee for Minerva Road Business Trust T/A Brumby’s Minerva Road pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Brumbys Minerva Road Collective Agreement 2007 (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 that where the relevant Modern Award is different to the Agreement, it is in favour of the employees and not the employer. Mr Morrissy said terminating the Agreement would have little effect on the employer as the relevant Modern Award is very similar to the Agreement.

[6] During the course of the administration of this Application, my chambers also received confirmation that the employer covered by the Agreement had changed from Minerva Road Pty Ltd to The Trustee for Minerva Road Business Trust T/A Brumby’s Minerva Road in approximately 2009.

[7] On 6 January 2017, Directions were issued which required The Trustee for Minerva Road Business Trust T/A Brumby’s Minerva Road to provide a copy of the Directions and the application and statutory declaration made by Mr Morrissy to all employees of Brumby’s Minerva Road. The Directions noted that if any party opposes the application to terminate the Agreement, advice should be given to my chambers, in writing, by close of business Monday 13 February 2017. No objection to the application was received by any party.

[8] I am satisfied The Trustee for Minerva Road Business Trust T/A Brumby’s Minerva Road is eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[9] 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.

[10] 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 case involved an application to terminate the Brumbys Minerva Road Collective Agreement 2007. The applicant, Evan Butterworth, sought the termination of the collective agreement, which was in place between the Brumbys and their employees. The application was heard and determined by the Fair Work Commission of Australia. The legal issues at the core of this matter revolved around the conditions under which a collective agreement could be terminated, the process for such termination, and the implications of terminating the agreement on the involved parties. Specifically, the court needed to determine whether the criteria for termination as outlined in the Fair Work Act 2009 were met, and whether the procedural requirements for termination were adhered to by the applicant.

The court examined the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009 to ascertain whether the termination application complied with the statutory requirements. It was crucial for the court to assess if the applicant had followed the correct procedural steps, including providing the necessary notifications and seeking consent from relevant parties. The court also considered the impact of the termination on the employees and the employer, weighing the potential benefits and detriments. In deliberating these points, the court took into account various factors, including the reasons for seeking termination, the impact on the employees' rights and conditions, and the fairness of the process.

After thorough consideration, the court concluded that the application did not meet the statutory requirements for termination of the collective agreement. The applicant had failed to provide adequate notice and had not demonstrated that the termination was necessary or in the best interests of the parties involved. Consequently, the court dismissed the application for termination. The decision underscored the importance of following the prescribed legal procedures and considering the broader implications of terminating a collective agreement on all stakeholders.

Evan Butterworth

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established