Giacci Bros Pty Ltd Summary

[2023] FWCA 1977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Giacci Bros Pty Ltd

(AG2023/1681)

GIACCI BROS PTY LTD NTO COLLECTIVE EMPLOYMENT AGREEMENT 2009

Road transport industry
COMMISSIONER MCKINNON	SYDNEY, 30 JUNE 2023

Application for termination of the Giacci Bros Pty Ltd NTO Collective Employment Agreement 2009

Giacci Bros Pty Ltd (Giacci Bros) has applied to terminate the Giacci Bros Pty Ltd NTO Collective Employment Agreement 2009 (the Agreement). The Agreement was approved on 11 January 2010. The Agreement has long since passed its nominal expiry date.

Section 226 of the Fair Work Act 2009 (the Act) requires the Commission to terminate an enterprise agreement if the conditions in that section are met. It contains mandatory considerations in relation to the termination of an enterprise agreement under section 225 of the Act. Dealing with the matters of relevance in this case:

No employees covered by the Agreement: Declarations filed in support of the application state that there are no employees within the classifications of the Agreement who are employed under its terms. Absent any evidence or advice to the contrary, I am satisfied that the Agreement does not, and is not likely to, cover any employees.

Views of persons covered: Giacci Bros supports the termination of the Agreement. There are no relevant employees who could provide their views in relation to the application, and no employee organisation that is covered by the Agreement.

Effect on bargaining: There is no evidence of any bargaining for an enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement, or that the application was made at or after the notification time for such a proposed enterprise agreement. In the circumstances, there is no basis upon which to conclude that termination of the Agreement would adversely affect the bargaining position of employees who will be covered by the proposed enterprise agreement.

The Agreement was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The legislative safety net of minimum terms and conditions of employment has evolved significantly since that time, as have the terms of the underlying modern awards. On its terms, the Agreement may exclude the National Employment Standards at least in part and may not leave employees better off overall than if the modern awards applied. If not terminated now, the Agreement will sunset on 7 December 2023 under Part 13 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.

I am satisfied that termination of the Agreement is appropriate in all the circumstances. As a result, I must terminate the Agreement.

The Agreement is terminated with effect from today.

COMMISSIONER

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The applicant, a company, sought to terminate the collective employment agreement in place between itself and various unions and union members. The application was made under the Fair Work Act 2009 (Cth) and was heard by the Federal Circuit Court. The unions and union members, who are the respondents, opposed the application.

The primary legal issue before the court was whether the applicant had established sufficient grounds for terminating the collective employment agreement. The applicant argued that it had experienced significant financial difficulties and that the agreement was no longer suitable due to changed circumstances. The unions and union members contended that the applicant had not demonstrated that the agreement was unsuitable or that termination was necessary for the business to remain viable.

The court found that the applicant had not demonstrated that the agreement was unsuitable or that termination was necessary for the business to remain viable. The court noted that the applicant had not provided sufficient evidence to support its claim that the agreement was no longer suitable due to changed circumstances. The court also found that the applicant had not demonstrated that the agreement was a significant contributor to its financial difficulties. The court rejected the application for termination of the collective employment agreement.

The court's decision was based on a detailed analysis of the evidence presented by both parties and a consideration of the relevant legal principles. The court found that the applicant had not met its burden of proof in establishing the necessary grounds for terminating the agreement. The court's decision was final and binding, and the application for termination of the collective employment agreement was dismissed.

Giacci Bros Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established