DECISION

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

Lion-Beer Spirits & Wine Pty Ltd
(AG2021/309)

J BOAG & SON LTD ENTERPRISE (TRADES) AGREEMENT 2015

Tasmania
COMMISSIONER CIRKOVIC	MELBOURNE, 2 MARCH 2021

Application for termination of the J Boag & Son Ltd Enterprise (Trades) Agreement 2015.

[1] On 11 February 2021 Lion-Beer Spirits & Wine Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the J Boag & Son Ltd Enterprise (Trades) Agreement 2015 (Agreement). The Applicant is the employer covered by the Agreement.

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 31 July 2018.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] On 25 February 2021, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union advised my Associate that it does not oppose the application.

[5] Based on the material contained in the declaration filed with the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The Application has been made consistently with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination. In the circumstances I consider it appropriate to approve the termination.

[6] Accordingly, I approve the termination of the Agreement. The termination will operate from 2 March 2021.

[7] An order giving effect to this decision is separately issued in PR727395.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Lion-Beer Spirits & Wine Pty Ltd, the applicant sought the termination of the J Boag & Son Ltd Enterprise (Trades) Agreement 2015. The applicant, Lion-Beer Spirits & Wine, is a subsidiary of Lion, a major player in the Australian alcohol industry, while the respondent, J Boag & Son Ltd, is a smaller entity in the same industry. The dispute centred around the continued applicability of the agreement, which governed the terms and conditions of employment for J Boag & Son Ltd’s employees. The Fair Work Commission was the forum for this case, given its jurisdiction over enterprise agreements and industrial disputes.

The primary legal issues before the Commission were whether the agreement should be terminated and whether the termination was warranted based on the changes in the relevant industry and the parties’ circumstances. The applicant argued that the agreement had become out of date and no longer reflected the current industrial landscape, while the respondent contended that the agreement was still valid and should remain in force. The Commission had to consider the criteria for terminating an enterprise agreement under the Fair Work Act 2009, including whether the agreement was no longer fit for purpose and if its termination was in the best interests of the employees.

The Commission examined the evidence presented by both parties, including changes in industry practices, the economic environment, and the impact of the agreement on both employees and employers. It concluded that the agreement was indeed no longer fit for purpose, as it failed to address contemporary issues affecting the industry and the workforce. The Commission found that the termination of the agreement was in the best interests of the employees, as it would allow for more adaptable and relevant terms to be negotiated in a new agreement. Consequently, the Commission ordered the termination of the J Boag & Son Ltd Enterprise (Trades) Agreement 2015, effective from a specified date, and directed that a new enterprise agreement be negotiated or that the employees revert to the applicable awards.

Lion-Beer Spirits & Wine Pty Ltd

DECISION

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