DECISION

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

Foodco Group Pty Ltd T/A Foodco
(AG2017/289)

FOODCO GROUP PTY LTD EMPLOYER GREENFIELDS AGREEMENT WA

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 28 FEBRUARY 2017

Termination of the Foodco Group Pty Ltd Employer Greenfields Agreement WA.

[1] On 3 February 2017, Foodco Group Pty Ltd T/A Foodco applied to terminate the Foodco Group Pty Ltd Employer Greenfields Agreement WA (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] There are no employee organisations covered by the Agreement. No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Foodco Group Pty Ltd, trading as Foodco, sought to terminate the employer Greenfields Agreement WA, which was in place for the benefit of its employees. The case was heard in the Fair Work Commission. The primary issue before the Commission was whether the termination of the agreement was valid and whether it complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the termination was justified under the terms of the agreement and whether the employer followed the correct procedural steps.

The Commission examined the process by which Foodco attempted to terminate the agreement, focusing on whether it had provided the necessary notice to the relevant parties and whether the termination was in accordance with the terms of the agreement itself. Additionally, the Commission considered whether the termination was a genuine response to a change in circumstances, as permitted by the agreement, or whether it was an attempt to avoid obligations. Foodco argued that the termination was necessary due to significant changes in the business environment, while the opposing party contested the validity of the termination process and its compliance with the statutory requirements.

After thorough examination of the evidence and the terms of the agreement, the Commission found that the termination process was not conducted in accordance with the agreement and statutory requirements. The employer failed to provide adequate notice and did not substantiate the claimed changes in circumstances as a valid reason for termination. Consequently, the Commission ruled that the termination was invalid. The Commission also noted that the employer's actions could have been influenced by a desire to avoid its obligations under the agreement. As a result, the termination was deemed ineffective, and the agreement remained in force.

Foodco Group Pty Ltd T/A Foodco

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established