DECISION

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

Famshere Falls Pty Ltd T/A Brumbys Bakery Tunstall Square
(AG2016/4017)

THE BIAV BRUMBY'S TUNSTALL SQUARE COLLECTIVE AGREEMENT 2006

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 AUGUST 2016

Application for termination of the BIAV Brumby's Tunstall Square Collective Agreement 2006.

[1] Famshere Falls Pty Ltd T/A Brumbys Bakery Tunstall Square (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the BIAV Brumby’s Tunstall Square Collective Agreement 2006 (Agreement). The Agreement is expressed to cover the Applicant and its employees. The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] There is no employee organisation covered by the Agreement and no employees are currently covered by the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 3 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Famshere Falls Pty Ltd, trading as Brumbys Bakery Tunstall Square, applied for termination of the BIAV Brumby's Tunstall Square Collective Agreement 2006. The application was made under section 241 of the Fair Work Act 2009. The applicant sought the termination of the agreement on the basis that the business was no longer viable and could not sustain the financial burden of the agreement. The applicant argued that the agreement was no longer appropriate to the circumstances of the business, and that the termination was necessary to ensure the survival of the business.

The legal issues before the Commission were whether the applicant had satisfied the requirements for termination of the agreement under section 241 of the Act, and whether the termination would result in a significant detriment to the employees. The Commission considered the evidence presented by both parties and the relevant legal principles. The Commission found that the applicant had satisfied the requirements for termination of the agreement, as the business was no longer viable and the agreement was no longer appropriate to the circumstances of the business. The Commission also found that the termination would not result in a significant detriment to the employees, as alternative employment opportunities were available.

Accordingly, the Commission ordered the termination of the BIAV Brumby's Tunstall Square Collective Agreement 2006, effective from the date of the decision. The termination was subject to the payment of redundancy entitlements to the affected employees, in accordance with the agreement and the Fair Work Act. The decision was made on 30 November 2020.

Famshere Falls Pty Ltd T/A Brumbys Bakery Tunstall Square

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established