George Weston Foods Limited T/A Tip Top Bakeries
[2020] FWCA 374
•24 JANUARY 2020
| [2020] FWCA 374 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
George Weston Foods Limited T/A Tip Top Bakeries
(AG2019/3702)
TIP TOP BAKERIES (CANBERRA) ENTERPRISE AGREEMENT 2017
Commercial sales | |
DEPUTY PRESIDENT KOVACIC | CANBERRA, 24 JANUARY 2020 |
Application for termination of the Top Top Bakeries (Canberra) Enterprise Agreement 2017.
[1] George Weston Foods Limited T/A Tip Top Bakeries (the Applicant) made an application under s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Tip Top Bakeries (Canberra) Enterprise Agreement 1(the Agreement). The application was received by the Fair Work Commission (the Commission) on 30 September 2019 and was accompanied by a Statutory Declaration by Ms Sarah Rados, the Applicant’s People and Performance Manager, National Field Sales.
[2] The Agreement has a nominal expiry date of 30 August 2019.
[3] On 3 October 2019 the Commission wrote to the Applicant in the following terms:
“On 30 September 2019 Tip Top Bakeries made an application to the Fair Work Commission pursuant to s.225 of the Fair Work Act 2009 to terminate Tip Top Bakeries (Canberra) Enterprise Agreement 2017 (the Agreement).
A copy of the application and supporting documentation is included with this letter.
In deciding whether to terminate the Agreement, the Commission is required to consider the views of the any employee organisation and any employees covered by the Agreement.
DIRECTIONS
The following directions are issued:
1. This Letter and Directions are to be made available to any employee of Tip Top Bakeries (the Applicant) by no later than close of business on Wednesday, 9 October 2019.
2. Any party intending to provide their views on the order sought may do so by providing a written statement to chambers ([email protected]) by no later than close of business on Friday, 11 October 2019.
3. If any party wishes to be heard, they must advise chambers by email, by no later than close of business on Friday, 11 October 2019.”
[4] The Transport Workers’ Union of Australia (TWU) which is covered by the Agreement was copied in on the above correspondence and invited to provide its views regarding the application. The TWU wrote to the Commission on 11 October 2019 advising that it objected to the termination of the application. No other views were received by the Commission in response to the above Directions.
[5] Against that background, the application was listed for a telephone mention and/or directions hearing on 29 October 2019. That hearing concluded on the basis that the TWU would consider the Applicant’s offer to provide enforceable undertakings to the effect that the Agreement would continue to apply to existing employees. At a report back conference held on 20 December 2019 the TWU advised that it was amenable to such an approach, subject to agreement on the terms of the enforceable undertaking.
[6] In subsequent developments:
• the TWU emailed my Chambers on 20 December 2019 shortly after the abovementioned report back conference confirming that it was satisfied with the Applicant’s proposed enforceable undertakings;
• on 8 January 2019 the Applicant’s representative, Mr Rogan McMahon of the Australian Industry Group, emailed the Commission providing a copy of the Applicant’s undertakings (a copy of the undertakings is attached to this decision) and inter alia confirming that the TWU had reviewed and accepted the undertakings and no longer opposed the termination of the Agreement;
• on 22 January 2020 Mr McMahon advised the Commission by email that as a result of the undertakings proffered by the Applicant that it no longer relied on that aspect of Ms Rados’ statutory declaration where she stated that “[t]he current affected employees will enjoy more beneficial Award terms not currently enshrined within the Enterprise Agreement”; and
• also on 22 January 2020 the TWU the confirmed by email that it had no objection to the termination of the Agreement in light of the undertakings provided by the Applicant.
The statutory framework
[7] The relevant provisions of the Act are 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.”
Consideration of the issues
[8] With regard to the requirements of s.225, as mentioned above the Agreement has passed its nominal expiry date. As the Applicant is the employer covered by the Agreement it is entitled to make an application to the Commission for termination of the Agreement.
[9] I turn now to deal with the considerations set out in s.226 of the Act.
s.226(a) – Public Interest
[10] Ms Rados declared inter alia that it was not contrary to the public interest to terminate the Agreement, adding that the public as a whole would not be affected by the termination and that there were no considerations which were distinct from the interests of the employer and the employees covered by the Agreement that would be affected.
[11] The TWU did not address this issue in advising that it had no objection to termination of the Agreement.
[12] I do not consider that the public interest is enlivened in this case. Accordingly, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
s.226(b)(i) – the views of the employees, each employer, and each employee organisation (if any), covered by the agreement
[13] Ms Rados declared that the Applicant was experiencing changes in shopper trends and customer requirements which required a change in the rostering requirements for merchandisers. Ms Rados further declared that the Agreement did not allow sufficient flexibility for the Applicant to meet these changes/requirements, adding that the changes had resulted in decreased product demand necessitating cost-reductions across the business. Ms Rados also stated the Applicant was proposing to terminate the Agreement on the basis that, as a result of a restructure of the Applicant’s Canberra operations, the Agreement was now of only marginal relevance at the workplace as it only covered around 0.75% of the Applicant’s national merchandiser workforce.
[14] As noted above, the TWU has no objection to termination of the Agreement in the light of the undertakings provided by the Applicant.
[15] As to the views of employees, as previously mentioned no comments were received from employees in response to the Directions issued on 3 October 2019 (see paragraph [4] above).
[16] In short, the views received by the Commission either support or do not object to the termination of the Agreement.
s.226(b)(ii) – the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them
[17] Ms Rados declared that termination of the Agreement would increase organisational efficiency and provide significant future cost savings to the Applicant.
[18] As a result of the undertakings given by the Applicant employees covered by the Agreement will not be negatively affected by termination of the Agreement, indeed they will receive a 2% wage increase from the first full pay period after termination.
[19] As previously mentioned, the TWU has no objection to termination of the Agreement in the light of the undertakings provided by the Applicant.
[20] Based on the above, termination of the Agreement will have a positive impact on the employer and those employees covered by the Agreement. This supports a finding that the Agreement should be terminated.
Summary
[21] Having regard to the requirements of s.226 of the Act and based on the material that is before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances. As such, consistent with s.226 of the Act the Commission must terminate the Agreement.
Conclusion
[22] Pursuant to s.226 of the Act, the Agreement is terminated. The termination of the Agreement shall operate from the date of this Decision. An Order to that effect will be issued in conjunction with this Decision.
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