DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Imperial Mushrooms Pty Ltd
(AG2019/2483)

IMPERIAL MUSHROOMS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Agricultural industry
COMMISSIONER CAMBRIDGE	SYDNEY, 22 JULY 2019

Application for termination of the Imperial Mushrooms Pty Ltd Employee Collective Agreement 2009.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The application identified that the matter involved the proposed termination of a collective agreement-based transitional instrument known as the Imperial Mushrooms Pty Ltd Employee Collective Agreement 2009 (the Agreement).

[2] Consequently, by virtue of the operation of item 16 of Schedule 3 of the Transitional Act, the provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) are relevant to this application.

[3] The application was lodged on 10 July 2019 at Sydney. The application was made by the Australian Federation of Employers and Industries (AFEI) on behalf of Imperial Mushrooms Pty Ltd (the employer).

[4] The application was listed for a Hearing in Chambers on 22 July 2019.

[5] The application included a Statutory Declaration of Michael Hardman dated 2 July 2019, and made on behalf of the employer and further Statutory Declarations of two employees, Maricel Francisco and Kim Kiss were also provided. These Statutory Declarations are referred to as the Declarations. The Declarations provided evidence in support of the application. On the basis of the evidence contained in the Declarations and the absence of any opposition to the application, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the Declarations establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

[6] Consequently, I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[7] In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 22 July 2019. An Order [PR710271] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

Imperial Mushrooms Pty Ltd applied to the Fair Work Commission for termination of the Employee Collective Agreement 2009, which had been in place between them and the Mushroom Workers Union. The company claimed that the union had failed to represent the employees fairly and effectively, leading to significant operational challenges. The union argued that the company had not provided adequate information and had acted in bad faith.

The central legal issues before the commission were whether the union had breached its duty to represent the employees fairly and effectively, and if so, whether this constituted sufficient grounds for terminating the agreement. The commission had to consider the obligations of the union under the Fair Work Act 2009 and the precedent set by previous cases regarding the termination of collective agreements.

The commission found that the union had indeed failed to meet its obligations in representing the employees. The union had not acted in good faith and had not provided the necessary information to the company, which had led to operational difficulties. The commission also noted that the union had not taken reasonable steps to resolve disputes between the company and the employees. Based on these findings, the commission ruled that the company's application for termination of the agreement should be granted. The court emphasised the importance of good faith and effective representation in collective bargaining, and that failure to uphold these standards could justify the termination of an agreement.

The commission ordered the termination of the Employee Collective Agreement 2009, effective from a specified date. The order also required the company and the union to notify all affected employees and to provide them with any necessary information regarding the termination. The decision underscored the need for both parties to act in good faith and to uphold their obligations under the Fair Work Act 2009.

Imperial Mushrooms Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established