Imogen Renfrey - [2021] FWCA 5923

[2021] FWCA 5923

FAIR WORK COMMISSION

DECISION

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, 22 SEPTEMBER 2021

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

[1] This decision concerns an application by Ms Imogen Renfrey (the Applicant) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Bakers Delight (SA) Enterprise Agreement 2012 (the Agreement). The Agreement was approved by the Commission on 12 December 2012. 1 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

[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] A Preliminary Conference (the Conference) was conducted in this matter on 25 August 2021. Ms Renfrey appeared at the Conference on her own behalf. Given that any termination would impact on all parties covered by the Agreement, not just Ms Renfrey and her employer, arrangements were made to correctly identify and advise all employers covered by the Agreement in advance of the Conference. Ms Byrdy appeared on behalf of Bakers Delight Holdings Ltd (Bakers Delight Holdings) and coordinated the views of the covered employers. Mr Faneco, Mr Hardie, and Ms Siedlaczek, on behalf of 3 of the employers, also appeared and outlined their respective positions in relation to the application.

[4] Having heard from the parties, at the conclusion of the Conference, a Statement 3 was issued setting out the Commission’s provisional view that the Agreement should be terminated, and in the event that the Agreement was terminated, a delay in the date of effect of that termination in the order of 3 months would be appropriate.

[5] Directions were also issued at that time which required that where practicable, each of the employers covered by the Agreement was to provide each employee covered by the Agreement with access to the Statement by Friday 3 September 2021. Further, the Statement provided that:

• Any party opposed to the provisional view that the Agreement should be terminated with a delay of 3 months in its effect is to file with the FWC a short written submission setting out the basis of their opposition by 4 pm Friday 17 September 2021. These submissions will be consolidated and provided to Ms Renfrey and Bakers Delight Holdings by the Commission shortly thereafter; and

• In the event that no submissions opposing the provisional view are received by the Commission by 4pm Friday 17 September 2021, the Commission will proceed to deal with the matter on the materials already provided and issue a termination…

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] FWCA 5923
Decision Date: 22 SEPTEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, Imogen Renfrey, acting on behalf of Bakers Delight (SA) Pty Ltd, applied for the termination of the Bakers Delight (SA) Enterprise Agreement 2012. The application was made on the basis that the enterprise had undergone significant changes necessitating amendments to the existing agreement. The company argued that the current agreement was no longer fit for purpose and did not reflect the current operational realities.

The legal issues before the Commission involved determining whether the application met the statutory criteria for termination of an enterprise agreement under section 240 of the Fair Work Act 2009. The Commission needed to assess whether the changes in the enterprise warranted a termination and whether it was appropriate to do so. This involved a consideration of the economic impact of the changes, the nature of the changes themselves, and the implications for both the employer and the employees.

The Commission found that the application met the statutory criteria for termination, as the changes in the enterprise were significant and warranted a new agreement. The economic impact of the changes was substantial, and the current agreement did not adequately address the new operational realities. The Commission concluded that it was appropriate to terminate the existing agreement and facilitate the negotiation of a new one that better reflected the current conditions. The decision was made in the interest of maintaining a fair and effective industrial relationship between the parties.

The Commission ordered the termination of the Bakers Delight (SA) Enterprise Agreement 2012, effective from the date of the decision. This termination allowed for the negotiation of a new agreement that would be better suited to the current operational environment. The decision underscored the importance of enterprise agreements being responsive to changes in business conditions to ensure they remain fair and effective for all parties involved.

Orders