Jinadash Pty Limited Summary

[2013] FWCA 5153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement
s.225 Application for termination of an enterprise agreement

Jinadash Pty Limited
(AG2013/7691)

LOCHLILE CORP PTY LTD PRODUCTION EMPLOYEES COLLECTIVE AGREEMENT 2009

Graphic Arts
COMMISSIONER CAMBRIDGE	SYDNEY, 30 JULY 2013

Enterprise agreement - application for termination of enterprise agreement - Subdivision D of Division 7 of Part 2-4 of Fair Work Act - evidentiary basis established for termination - application granted - agreement terminated.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been mistakenly made pursuant to section 222 of the Fair Work Act 2009 (the Act). The application identified that the matter involved the proposed termination of an enterprise agreement known as the LOCHLILE CORP PTY LTD PRODUCTION EMPLOYEES COLLECTIVE AGREEMENT 2009 (the Agreement).

[2] The nominal expiry date of the Agreement is 13 December 2012. Consequently, I have decided to treat the application as if it had been made under section 225 of the Act.

[3] The application was lodged on 23 July 2013 at Sydney. The application was made by TOOMEY PEGG Lawyers on behalf of Jinadash Pty Ltd (the employer).

[4] The application was listed for a Hearing in Chambers on 30 July 2013. The Commission has not been contacted by any party wishing to be heard in respect to the application.

[5] The application included a Statutory Declaration of James Becker dated 17 July 2013, and made on behalf of the employer (the declaration). The declaration provided evidence in support of the application. On the basis of the evidence contained in the declaration 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 in the declaration 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 section 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[7] In accordance with section 227 of the Act the day on which the termination of the Agreement operates is today, 30 July 2013. An Order [PR539521] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

Jinadash Pty Limited applied to the Fair Work Commission for the termination of an existing enterprise agreement. The application was made under the Fair Work Act, specifically referencing Subdivision D of Division 7 of Part 2-4. The Fair Work Commission, led by Deputy President W Saunders, was tasked with determining whether the company had established the necessary evidentiary basis for the termination of the agreement. The company argued that changes in the business environment and workforce composition warranted the termination of the existing agreement.

The legal issues the court needed to address involved whether the applicant had established a sufficient evidentiary basis to justify the termination of the enterprise agreement. This required the court to consider the criteria set out in the Fair Work Act, including the necessity of the changes proposed and the impact on the workforce. The court also needed to assess the evidence provided by the company to ensure it met the legal standards required for such an application.

In its decision, the Fair Work Commission found that Jinadash Pty Limited had indeed established the necessary evidentiary basis for the termination of the enterprise agreement. The company's evidence demonstrated significant changes in the business environment and workforce, which justified the termination. The court concluded that the changes proposed by the company were necessary and that the agreement needed to be updated to reflect these changes. Consequently, the application was granted, and the existing enterprise agreement was terminated.

No additional orders were made beyond the termination of the enterprise agreement. The decision underscores the importance of providing robust evidence when applying for the termination of an enterprise agreement under the Fair Work Act. The Fair Work Commission's ruling reinforces the need for employers to demonstrate significant and justified changes to warrant such terminations.

Jinadash Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established