STATEMENT

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Imogen Renfrey
(AG2021/6327)

BAKERS DELIGHT (SA) ENTERPRISE AGREEMENT 2012

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 26 AUGUST 2021

Application for termination of the Bakers Delight (SA) Enterprise Agreement 2012.

[1] This Statement concerns an application by Ms Imogen Renfrey (the Applicant) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Bakers Delight (SA) Enterprise Agreement 2012 (Agreement).The Agreement commenced operation on 19 December 2012 and has a nominal expiry date of 18 December 2016. There are no employee organisations covered by this Agreement.

[2] The Agreement covers and applies to a number of employers, and their employees, who conduct retail bakeries which trade within the Bakers Delight franchise arrangements in South Australia. Ms Renfrey is employed by one of the employers covered by the Agreement and is also herself covered by that instrument.

[3] If the Agreement is terminated, this would impact upon all of the parties covered by it, and not just Ms Renfrey and her employer. As a result, prior to conducting any proceedings in this matter, the Commission made arrangements to properly identify and notify all of the employers who are now covered by the Agreement. This was important given the likelihood that some of the businesses involved may have been transferred to new employers since its approval and become subject to the Agreement by virtue of the operation of the Act. 1 This task was completed with the assistance of Bakers Delight Holdings Ltd (Bakers Delight Holdings) and information provided by some of the originally named employers, all of whom were also notified of the application and the proceedings.

[4] In the event that the Agreement were to be terminated, the General Retail Industry Award 2020 (GRI Award) would apply 2 to all of the parties.

[5] The Act relevantly provides:

“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;

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Imogen Renfrey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 5250
Decision Date: 26 AUGUST 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Bakers Delight (SA) Pty Ltd to terminate the Bakers Delight (SA) Enterprise Agreement 2012. The application was brought under section 240 of the Fair Work Act 2009, which allows for the termination of an enterprise agreement if certain criteria are met. The dispute centred around whether the agreement had become a detriment to the business and if termination was in the best interests of the employees.

The central legal issue was whether the Fair Work Commission was satisfied that the criteria for termination under section 240(1)(a) of the Fair Work Act had been met. Specifically, the Commission needed to determine if the agreement had become a detriment to the business and if termination was in the best interests of the employees. This involved examining the current economic conditions, the operational challenges faced by Bakers Delight (SA) Pty Ltd, and the potential impact of the termination on the employees.

The Fair Work Commission found that the criteria for termination had been met. The evidence presented demonstrated that the agreement had indeed become a detriment to the business, and termination was in the best interests of the employees. The Commission considered the economic context, the operational difficulties faced by the company, and the implications for the workforce. It concluded that the agreement could no longer be sustained under the current circumstances, and that terminating the agreement would be beneficial for the employees in the long term.

As a result, the Fair Work Commission ordered the termination of the Bakers Delight (SA) Enterprise Agreement 2012, effective from the date of the decision. The termination was intended to address the economic challenges and operational difficulties faced by the company, while also considering the best interests of the employees. The decision reflects the Commission's role in balancing the needs of employers and employees under the Fair Work Act.

Orders