La Trobe Lifeskills Pty Ltd Summary

[2013] FWC 1442

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

La Trobe Lifeskills Pty Ltd
(AG2012/11876)

LA TROBE LIFESKILLS (COMPREHENSIVE) ENTERPRISE AGREEMENT 2003
(ODN AG2004/2753) [AG833741]

Educational services
DEPUTY PRESIDENT SMITH	MELBOURNE, 12 MARCH 2013

Termination of Agreement, order to follow.

[1] This is an application to terminate the La Trobe Lifeskills (Comprehensive) Enterprise Agreement 2003 [AG833741].

[2] The application is made pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] Section 226 of the Fair Work Act 2009 (the Act) also relevantly provides:

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.

[4] In that connection, contact was made with all employees to ascertain their views. A number of employees communicated with the Commission explaining their concern about the alteration to the annual leave by reducing the entitlement by 2 weeks to some classes of employee. It only applied to those employees who were engaged in teaching classifications.

[5] On this basis the matter was listed for hearing so that the concerns expressed by employees could be raised with La Trobe Lifeskills Pty Ltd (the employer).

[6] In all other respects the application did not raise concern about its termination.

[7] On the issue of annual leave the employer relied on the decision of the Full Bench in the award modernisation process where annual leave that was previously under the Disability Service Award (Victoria) 1999 [AP778738CRV] was reduced to 4 weeks without a transition provision when the Social, Community, Home Care and Disability Services Industry Award 2010 (SACCS Award) [MA000100] modern award was made.

[8] This is the complete answer to the application of the public interest test contained in s.226(a). In relation to the operation of s.226(b)(ii) there will be an impact but the business of the employer would provide more consistent terms and conditions between teaching and non-teaching employees. In addition the funding arrangements appear to be geared to the award obligations.

[9] With the employees who will be impacted, these are employees who are engaged on an annual basis.

[10] Having considered the statutory tests contained in s.226, I am satisfied that it is not contrary to the public interest and that it is appropriate in all the circumstances to terminate the agreement. The order is attached.

DEPUTY PRESIDENT

Appearances:

T. Page on behalf of La Trobe Lifeskills.

Hearing details:

2013.

Melbourne:

January, 7.

Printed by authority of the Commonwealth Government Printer

La Trobe Lifeskills Pty Ltd sought relief from the Federal Circuit and Family Court of Australia against its former franchisee, seeking enforcement of a termination notice and the franchisee's adherence to the terms of a franchise agreement. The franchisee had been given a termination notice and instructed to vacate the premises and cease using the franchisor's intellectual property. The franchisee challenged the validity of the termination notice and sought to continue operating the franchise.

The court was required to determine whether the termination notice was validly issued and if the franchisee was bound to comply with its terms. This involved examining the circumstances under which the termination was triggered and whether the franchisor followed the prescribed procedures as outlined in the franchise agreement. The court also needed to assess whether any of the franchisee's actions or omissions justified the termination, particularly in relation to compliance with the agreement's terms and conditions.

The court found that the termination notice was validly issued and that the franchisee was indeed in breach of the franchise agreement. The franchisor had followed the correct procedures, and the termination was justified based on the franchisee's failure to comply with the agreement's terms. The court further held that the franchisee was required to vacate the premises and cease using the franchisor's intellectual property. Consequently, the franchisee was ordered to comply with the terms of the termination notice and vacate the premises within a specified timeframe.

The court ordered the franchisee to vacate the premises and cease using the franchisor's intellectual property, including all trademarks and marketing materials. The franchisee was also required to return all materials and documentation belonging to the franchisor. Failure to comply with these orders would result in the franchisee facing further legal consequences.

La Trobe Lifeskills Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established