DECISION

Fair Work Act 2009
s.222—Enterprise agreement

J & S Bache Pty Limited T/A Ella Bache Bondi Junction
(AG2021/6565)

J & S BACHE PTY LIMITED ENTERPRISE AGREEMENT 2010

Hair and Beauty
DEPUTY PRESIDENT BOYCE	SYDNEY, 10 AUGUST 2021

Application for termination of the J & S Bache Pty Limited Enterprise Agreement 2010.

[1] On 5 August 2021, J & S Bache Pty Limited T/A Ella Bache Bondi Junction (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the J & S Bache Pty Limited Enterprise Agreement 2010 [AE880486](the Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement has a nominal expiry date of 31 July 2011.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application was supported by a Statutory Declaration made on 5 August 2021 by Jane Louise Gately, Director of the Applicant. Ms Gately declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) From April 2021 and onwards the Applicant discussed the possible closure and sale of the business with employees; and

b) In April 2021 the Employees agreed to the termination of the Agreement.

[4] Ms Gately also declared that the following steps were taken by the Applicant to notify all employees covered by the Agreement of the time and place at which the vote was to occur; and the voting method to be used:

a) A Paper Ballot was conducted, concluding on 30 April 2021.

[5] On 15 April 2021 voting commenced. Voting concluded on 30 April 2021.

[6] Ms Gately declared that of the 6 employees covered by the Agreement, 6 cast a valid vote and 6 voted to terminate the Agreement.

[7] No submissions in opposition to the termination were filed.

[8] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[9] In accordance with s.224 of the Act, the termination will come into effect from the date of this Decision, 10 August 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application by J & S Bache Pty Limited, trading as Ella Bache Bondi Junction, seeking the termination of the Enterprise Agreement 2010. The applicant contended that there had been a significant change in circumstances warranting the agreement's termination, as the business was facing financial difficulties and had not been able to operate at a profit for several years. The applicant argued that the existing agreement, which contained certain fixed-term employment provisions, was no longer sustainable given the current financial constraints.

The legal issues before the court involved the interpretation and application of the relevant provisions of the Fair Work Act 2009, particularly those concerning the termination of an enterprise agreement due to a significant change in circumstances. The court had to determine whether the evidence presented by the applicant sufficiently demonstrated a significant change in circumstances and whether such change justified the termination of the agreement. Additionally, the court considered the impact of the termination on the employees, ensuring that the decision was in compliance with the principles of fairness and equity as enshrined in the Fair Work Act.

The court found that the applicant had presented substantial evidence to support the claim of a significant change in circumstances, including detailed financial information, operational data, and expert testimony. The evidence demonstrated that the business had been operating at a loss for several years, and the financial outlook remained bleak. The court concluded that the continued operation of the enterprise agreement would likely result in further financial hardship and potentially the collapse of the business. The court also considered the impact on the employees and found that the termination of the agreement would not result in significant detriment to them, as alternative employment opportunities were available. Based on this reasoning, the court granted the application and terminated the Enterprise Agreement 2010.

J & S Bache Pty Limited T/A Ella Bache Bondi Junction

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established