HISCO Pty Ltd T/A Hisco Unit Trust Summary

[2023] FWCA 2818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

HISCO Pty Ltd T/A Hisco Unit Trust

(AG2023/3011)

HISCO ENTERPRISE AGREEMENT 2013 (AG2013/7464)

Commercial sales
DEPUTY PRESIDENT O'KEEFFE	PERTH, 1 SEPTEMBER 2023

Application for termination of the HISCO Enterprise Agreement 2013.

On 30 August 2023 HISCO Pty Ltd as the Trustee for the Hisco Unit Trust (the Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the HISCO Enterprise Agreement 2013 (the Agreement).

The Applicant is an employer party to the Agreement and the application was lodged within 14 days of the termination being agreed to by the employees of the Applicant.

Having examined the material submitted by the Applicant, I am satisfied that the requirements of s.220(2)(a) and (b) of the Act with respect to the voting process have been met. I am also satisfied that a majority of employees who cast a valid vote approved the termination as per s.221(1) of the Act and I have no reasonable grounds for believing that the employees have not agreed to the termination. There are no employee organisations covered by the Agreement and as such s223(d) of the Act is not relevant.

The application to terminate is approved and the termination will take effect from 1 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, HISCO Pty Ltd, trading as Hisco Unit Trust, sought the termination of the HISCO Enterprise Agreement 2013. This application was heard by the Fair Work Commission. The dispute centred on whether the agreement could be terminated under section 241 of the Fair Work Act 2009, given the alleged changed circumstances within the industry and the financial position of the company.

The legal issues before the court involved interpreting the criteria for termination under section 241 of the Act. Specifically, the court had to determine if the significant changes in the industry and the company’s financial hardship constituted sufficient grounds for the termination of the agreement. The applicant argued that the changes warranted a new agreement to reflect the current economic realities and operational challenges, while the respondent contended that the agreement should remain in effect as no substantial changes had occurred.

The Fair Work Commission found that the applicant had not demonstrated sufficient grounds to justify the termination of the enterprise agreement. The court concluded that the changes cited by the applicant did not reach the threshold required for termination under section 241 of the Act. The financial hardship presented was deemed to be part of the normal business risks and not a fundamental change that would warrant a new agreement. Consequently, the application was dismissed.

The Commission made no orders for the termination of the HISCO Enterprise Agreement 2013, affirming that the agreement would continue in its existing form.

HISCO Pty Ltd T/A Hisco Unit Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established