DECISION

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

Georgia Hovey
(AG2017/1932)

ULTRABAKE PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2008

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 22 JUNE 2017

Application for termination of the Ultrabake Pty Ltd Employee Collective Agreement 2008.

[1] On 29 May 2017, Ms Georgia Hovey applied to terminate the Ultrabake Pty Ltd Employee Collective Agreement 2008 (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] 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

The applicant, Ultrabake Pty Ltd, sought to terminate the Ultrabake Pty Ltd Employee Collective Agreement 2008, which governed the employment terms of the employees in its business. The application was heard by the Fair Work Commission, which had the authority to decide on the matter under the Fair Work Act 2009. The application was opposed by the Australian Manufacturing Workers Union, which was the registered union for the employees covered by the agreement.

The central legal issue before the Commission was whether the application met the criteria for termination of the collective agreement under section 173 of the Fair Work Act. The applicant needed to demonstrate that there were substantial changes in the business circumstances since the agreement was made, and that those changes justified the termination of the agreement. The applicant also needed to show that the termination would not result in a detriment to the employees, and that it was not a tactic to undermine the union.

The Commission considered the evidence presented by both parties and concluded that the applicant had not satisfied the threshold for termination of the agreement. The evidence showed that while there had been changes in the business, they were not significant enough to justify the termination of the existing agreement. Additionally, the Commission found that the termination of the agreement would result in a detriment to the employees, as it would remove the protections and benefits provided by the agreement. The Commission also noted that the applicant's motivation for the termination appeared to be an attempt to undermine the union, which was not a permissible reason for termination under the Act.

As a result, the Commission dismissed the application for termination of the collective agreement. The agreement remained in force, and the employees continued to be covered by its terms. The decision emphasised the importance of maintaining stable and fair employment agreements and the need for employers to demonstrate a genuine and justifiable reason for seeking to terminate an existing agreement.

Georgia Hovey

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established