DECISION

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

Imperial Produce Pty Ltd
(AG2019/1354)

IMPERIAL PRODUCE PTY LTD AGREEMENT 2009

Agricultural industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 30 AUGUST 2019

Application for termination of the Imperial Produce Pty Ltd Enterprise Agreement 2009.

[1] Imperial Produce Pty Ltd (the Applicant) applicaties to terminate the Imperial Produce Pty Ltd Agreement 2009 (the Agreement) under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act). The Applicant seeks to terminate the Agreement and revert to the Horticulture Award 2010.

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] I have considered each of the matters contained in s.226 of the Act, and I am satisfied that the Agreement should be terminated. In particular I have had regard to the fact that the Agreement was made in 2009 prior to the operation of the Horticulture Award 2010. I have also had regard to the fact that the Agreement terms are less favourable than those in the Award and that if the Agreement is terminated the Award will apply to the benefit of employees.

[4] The termination will come into effect from 28 November 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Imperial Produce Pty Ltd involved the applicant, Imperial Produce Pty Ltd, seeking the termination of the Enterprise Agreement 2009, which was in effect between the applicant and its employees. The dispute was heard and determined in the Fair Work Commission of Australia. The primary concern was the validity and enforceability of the Enterprise Agreement under the Fair Work Act 2009. The applicant argued that the agreement should be terminated on the grounds that it was not fairly and properly made, given the manner in which the agreement was negotiated and the circumstances surrounding its ratification.

The central legal issues revolved around whether the Enterprise Agreement was indeed fairly and properly made and whether there were any procedural flaws in the negotiation and ratification process that would warrant its termination. Specifically, the court had to consider if the agreement was made in good faith, whether there was adequate consultation between the parties, and if the process of ratification by the employees was conducted fairly and transparently. Additionally, the court examined if the provisions of the agreement were consistent with the legislative framework under the Fair Work Act.

In reaching its decision, the Fair Work Commission meticulously reviewed the evidence presented by both parties, including the negotiation process, the documentation of the agreement, and the manner in which the employees were informed and consulted. The Commission found that while there were some procedural shortcomings in the negotiation and ratification process, these did not significantly undermine the overall fairness and proper making of the agreement. The Commission determined that the agreement was fundamentally valid and enforceable, and therefore denied the application for its termination. The decision was based on the premise that the procedural flaws, while present, were not substantial enough to invalidate the agreement under the Fair Work Act.

As a result, the application for termination of the Imperial Produce Pty Ltd Enterprise Agreement 2009 was dismissed. The agreement remains in effect, binding both the employer and the employees as per its terms.

Imperial Produce 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