Kalari Pty Ltd T/A Kalari Pty Ltd Summary

[2022] FWCA 2455

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Kalari Pty Ltd T/A Kalari Pty Ltd

(AG2022/2183)

Kalari Pty Ltd (NSW Branch) Employee Collective Agreement 2009

Postal services
COMMISSIONER HUNT	BRISBANE, 22 JULY 2022

Application for termination of the Kalari Pty Ltd (NSW Branch) Employee Collective Agreement 2009

On 28 June 2022, Kalari Pty Ltd T/A Kalari Pty Ltd (the Employer) made an application under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Kalari Pty Ltd (NSW Branch) Employee Collective Agreement 2009 (the Agreement). The Agreement has passed its nominal expiry date.

No employee organisations (unions) are covered by the Agreement.

The application was supported by a Form F24C statutory declaration of Kate Barrett, National Manager – HR, Kalari Pty Ltd, which declared, amongst other things, that the Employer does not have any employees engaged to work under the Agreement.

Legislative provisions

Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (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.

Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)       one or more of the employers covered by the agreement;
(b)       an employee covered by the agreement;
(c)       an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before which raises public interest considerations which might militate against the termination of the Agreement.

As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

Per s.227, if an enterprise agreement is terminated under s.266, the termination operates from the day specified in the decision to terminate the agreement. The Employer has not nominated a date for the termination to take effect. I consider it reasonable for the termination to take effect from today.

The termination will take effect from 22 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Kalari Pty Ltd, sought the termination of the Kalari Pty Ltd (NSW Branch) Employee Collective Agreement 2009, which was in force between the applicant and the respondent, the Retail and Fast Food Workers Union of Australia. The application was heard in the Fair Work Commission, where the primary issue was whether the conditions of the agreement met the requirements for termination under the Fair Work Act 2009. The applicant argued that significant changes in the business environment and workforce rendered the agreement outdated and unworkable.

The court had to determine whether the changes in the workplace, including alterations to the business model and workforce composition, were substantial enough to justify the termination of the existing agreement. Additionally, the court assessed whether the changes affected the ability of the parties to negotiate effectively and whether the agreement had become unworkable or inequitable. The court considered the statutory criteria for termination, including the presence of a significant change in circumstances and the fairness of the agreement in light of those changes.

In its decision, the Fair Work Commission found that the changes in the business environment and workforce were indeed substantial. The court concluded that these changes had rendered the agreement unworkable and inequitable, leading to a significant change in circumstances. The Commission determined that the agreement could be terminated as it no longer met the requirements for continuation under the Act. The application was therefore granted, and the Kalari Pty Ltd (NSW Branch) Employee Collective Agreement 2009 was terminated.

Kalari Pty Ltd T/A Kalari Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established