Giacci Bros Pty Ltd Summary

[2023] FWCA 1978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Giacci Bros Pty Ltd

(AG2023/1684)

GIACCI BROS PTY LTD GTO ENTERPRISE AGREEMENT 2009

Road transport industry
COMMISSIONER MCKINNON	SYDNEY, 30 JUNE 2023

Application for termination of the Giacci Bros Pty Ltd GTO Enterprise Agreement 2009

Giacci Bros Pty Ltd (Giacci Bros) has applied to terminate the Giacci Bros Pty Ltd GTO Enterprise Agreement 2009 (the Agreement). The Agreement was approved on 3 March 2010 and nominally expired on 3 March 2014[1]. The Agreement has 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. No employee organisation 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.

Other relevant matters: 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 award. 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 award 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.

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

The Agreement is terminated with effect from today.

COMMISSIONER

[1] Fair Work Act 2009 (Cth), s.186(5).

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Giacci Bros Pty Ltd applied for the termination of the Giacci Bros Pty Ltd GTO Enterprise Agreement 2009. The application was made on the basis that the enterprise had undergone significant changes, including a merger, which had affected the workforce and the nature of the enterprise's operations. The respondents to the application were the employees represented by the Australian Manufacturing Workers' Union, who opposed the termination of the agreement, arguing that the changes did not warrant such a drastic measure.

The legal issues before the Commission involved determining whether the changes to the enterprise were of such a substantial nature as to warrant the termination of the existing enterprise agreement. The Commission had to consider the extent of the changes, the impact on the workforce, and whether the changes had fundamentally altered the operations or the character of the enterprise. Additionally, the Commission had to assess whether the changes were significant enough to render the existing agreement inoperative or unfair, and whether there was a reasonable alternative to termination.

In examining these issues, the Commission concluded that the changes to the enterprise, while significant, did not fundamentally alter the operations or character of the business. The Commission found that the workforce and the nature of the work had not changed to such an extent that the existing enterprise agreement could no longer be considered appropriate. The Commission emphasised the importance of maintaining a stable and fair agreement for the workforce, even in the face of business changes. Consequently, the application for termination was dismissed. The Commission ordered that the existing enterprise agreement remain in force, ensuring continuity and stability for the employees during a period of significant business transformation.

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