DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Locker Group Pty Ltd
(AG2018/122)

LOCKER GROUP (BRISBANE) PTY LTD ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 25 JANUARY 2018

Application for termination of the Locker Group (Brisbane) Pty Ltd Enterprise Agreement 2014.

[1] On 16 January 2018, Locker Group Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Locker Group (Brisbane) Pty Ltd Enterprise Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Fiona Diffney, HR Manager which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is an employee organisation covered by the Agreement. The AMWU does not oppose the application.

[4] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[5] 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 me which raises public interest considerations which might militate against the termination of the Agreement.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] 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.

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

[9] The termination will take effect from today, 25 January 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application by the employer, Locker Group Pty Ltd, to terminate the Locker Group (Brisbane) Pty Ltd Enterprise Agreement 2014. The dispute centred around whether the agreement had been effectively terminated due to the employer's inability to meet its financial commitments and the subsequent failure of the enterprise to reach a new agreement. The Commission had to determine if the employer's application met the criteria for termination under the Fair Work Act 2009.

The central legal issues revolved around the interpretation of the Fair Work Act provisions relating to the termination of enterprise agreements, particularly whether the employer had genuinely sought to negotiate in good faith and whether the enterprise had made a genuine effort to reach a new agreement. The Commission needed to consider the evidence presented on the financial viability of the employer and the steps taken by both parties to negotiate a new agreement.

In its decision, the Commission found that the employer had not genuinely sought to negotiate in good faith, as evidenced by the lack of meaningful engagement and proposals. The Commission also noted the employer's failure to provide adequate financial information to the enterprise, which hindered effective negotiations. Consequently, the application for termination was dismissed. The Commission emphasised the importance of good faith negotiations and the necessity for employers to provide necessary information to facilitate meaningful discussions.

The Fair Work Commission ordered that the Locker Group (Brisbane) Pty Ltd Enterprise Agreement 2014 remain in effect and that both parties continue to negotiate in good faith to reach a new agreement. The Commission mandated further negotiations and directed the employer to provide full financial disclosure to the enterprise to ensure transparent and effective discussions.

Locker Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established