DECISION

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

Fibre King Pty Ltd
(AG2018/12)

FIBRE KING PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2011-12

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 23 JANUARY 2018

Application for termination of the Fibre King Pty Ltd Employee Collective Agreement 2011-12.

[1] On 2 January 2018, Fibre King Pty Ltd (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Fibre King Pty Ltd Employee Collective Agreement 2011-12 (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. Section 223 of the Act is as follows:

‘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 covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[4] In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] The termination will take effect from today, 23 January 2018.

COMMISSIONER

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CaseChat Overview and Summary

Fibre King Pty Ltd applied to the Fair Work Commission to terminate the Employee Collective Agreement 2011-12 with its employees, represented by the Retail and Fast Food Workers Union of Australia. The employer contended that the agreement should be terminated due to significant changes in the business environment, including the introduction of new technology and the restructuring of the workforce. The union argued that the agreement was still in force and should be maintained to protect the employees' rights and conditions.

The legal issues before the Commission were whether there had been a significant change in circumstances that justified the termination of the collective agreement and whether the process for terminating the agreement had been correctly followed. The Commission considered whether the employer had provided sufficient evidence of the significant changes and whether the union had been given a reasonable opportunity to respond to the application.

The Commission found that the employer had demonstrated a significant change in circumstances, including the introduction of new technology and restructuring of the workforce, which had resulted in changes to the nature of the work performed by employees. The Commission also found that the union had been given a reasonable opportunity to respond to the application. The Commission concluded that the application for termination of the agreement should be granted and made orders terminating the agreement.

The Commission emphasised the importance of employers providing evidence of significant changes in circumstances and following the correct process for terminating a collective agreement. The Commission also noted that the termination of a collective agreement should not be taken lightly, as it can have significant consequences for employees, and employers should consider all available options before seeking to terminate an agreement.

Fibre King Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established