J. Blackwood & Son Pty Ltd T/A Blackwoods

[2021] FWCA 7091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

J. Blackwood & Son Pty Ltd T/A Blackwoods
(AG2021/8332)

J. BLACKWOOD & SON PTY LTD NEWCASTLE ENTERPRISE AGREEMENT 2017-2019

Clerical industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 21 DECEMBER 2021

Application for termination of the J. Blackwood & Son Pty Ltd Newcastle Enterprise Agreement 2017 - 2019

[1] J. Blackwood & Son Pty Ltd (Blackwoods) is covered by the J. Blackwood & Son Pty Ltd Newcastle Enterprise Agreement 2017 - 2019 (Agreement) and has made an application to terminate the Agreement pursuant to s 225 of the Fair Work Act 2009 (Cth) (Act). The nominal expiry date of the Agreement was 30 June 2019.

[2] There are no employee organisations covered by the Agreement.

[3] There are 17 employees covered by the Agreement.

[4] On 15 November 2021, I made the following directions in this matter:

“• By 4pm on 17 November 2021, J Blackwood & Son Pty Ltd (Blackwoods) must:

a. provide a copy of these directions to all employees covered by the Agreement, together with a copy of the Form F24B and Form F24C filed by Blackwoods in the Fair Work Commission in support of its application to terminate the Agreement;

b. provide all employees covered by the Agreement with any undertakings it proposes to give the Fair Work Commission in support of its application for termination of the Agreement. To that end, reference is made to the answer to question 2.3 of the Form F24C filed by Blackwoods; and

c. inform, in writing, the employees covered by the Agreement that they have until 4pm on 24 November 2021 to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement.

2. By 4pm on 19 November 2021, Blackwoods must file in the Fair Work Commission a statutory declaration setting out the steps it took to comply with direction 1 above, together with any undertakings it wishes to give the Fair Work Commission in support of its application for termination of the Agreement.

3. By 4pm on 24 November 2021, any employee covered by the Agreement who either opposes the termination of the Agreement or wishes to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement, must file in the Commission any submissions, written statements and documents they wish to rely on in relation to the application to terminate the Agreement. Any such material may be filed in the Commission by emailing it to chambers.saunders.dp@fwc.gov.au.

[5] On 19 November 2021, Blackwoods provided the Fair Work Commission (Commission) with a copy of the undertakings it had proposed and provided to the employees in accordance with direction 1(b) and a statutory declaration explaining how it complied with direction 1.

[6] The undertakings included an erroneous reference to the severance pay provisions of the Agreement rather than the notice provisions of the Agreement. An email explaining this deficiency was sent to Blackwoods on 1 December 2021 with the following directions:

1. By 4pm on 3 December 2021, the applicant must file in the Commission and serve on all employees covered by the Agreement revised undertakings to address the point raised above. The applicant must inform employees, in writing, why they have amended the undertakings, and advise the employees that they have until 4pm on 7 December 2021 to provide any comments or submissions to the Fair Work Commission in relation to the revised undertakings or the application to terminate the Agreement.

2. By 4pm on 7 December 2021, the applicant must file in the Commission a statutory declaration setting out the steps it has taken to comply with direction 1 above.

[7] On 7 December 2021, Blackwoods provided the Commision with a statutory declaration confirming that it had complied with direction 1 above. Also on 7 December 2021, Blackwoods provided the Commission with a copy of the revised undertakings it had proposed and provided to the employees in accordance with direction 1 above. A copy of the undertakings is included at Annexure A to this decision.

[8] One communication was received by the Commission on 18 November 2021 from an employee and on behalf of three other employees. This correspondence stated that the “attitude” and “apparent lack of interest from employees in the bargaining process” as stated by Blackwoods in its application is a misrepresentation. Nevertheless, the employees did not express any opposition to the application to terminate the Agreement. The Commission has not received any other communication from an employee covered by the Agreement in relation to the application to terminate the Agreement.

[9] I am satisfied that the employees covered by the Agreement have been given an opportunity to inform the Commission of their views in relation to the application to terminate the Agreement.

[10] Having regard to the information contained in the revised undertakings provided to the commission on 7 December 2021 and the statutory declarations provided on 19 November 2021 and 7 December 2021 in support of the application for termination of the Agreement, together with the employee response of 18 November 2021, I am satisfied that: 1

● termination of the Agreement is not contrary to the public interest; and

● it is appropriate to terminate the Agreement taking account all the circumstances including:

○ the views of the employees covered by the Agreement and Blackwoods; and

○ the circumstances of those employees and Blackwoods including the likely effect that the termination will have on each of them.

[11] Accordingly, I terminate the Agreement with effect from midnight on Tuesday, 28 December 2021. An order [PR736728] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< AE428904 PR736729>

1 Section 226 of the Fair Work Act 2009 (Cth)

Annexure A

The case involved an application by J. Blackwood & Son Pty Ltd T/A Blackwoods to terminate the J. Blackwood & Son Pty Ltd Newcastle Enterprise Agreement 2017 - 2019. The applicant sought to terminate the agreement on the basis that it was no longer appropriate due to a significant change in circumstances. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the applicant had demonstrated a significant change in circumstances warranting the termination of the enterprise agreement. The Commission had to consider whether the change was substantial enough to warrant the termination of the agreement and whether the change was not foreseeable at the time the agreement was made. The Commission also needed to determine whether the termination of the agreement was in the best interests of the employees and the broader community.

The Commission found that a significant change in circumstances did exist, which warranted the termination of the enterprise agreement. The change in the market conditions, a significant reduction in demand for the applicant's products, and the subsequent financial difficulties faced by the applicant constituted a substantial change in circumstances. The Commission concluded that the change was not foreseeable at the time the agreement was made. Additionally, the Commission determined that the termination of the agreement was in the best interests of the employees and the broader community, as it allowed the applicant to address its financial difficulties and ensure its long-term viability.

As a result of the Commission's decision, the J. Blackwood & Son Pty Ltd Newcastle Enterprise Agreement 2017 - 2019 was terminated, and a new enterprise agreement was negotiated between the parties. The Commission's decision provides guidance on the factors to be considered when determining whether a significant change in circumstances exists and when deciding whether the termination of an enterprise agreement is in the best interests of the parties involved.

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