McNeil Pet Supplies Pty Ltd ATF McNeil Family Trust T/A Purrfect Petz Summary

[2013] FWCA 4957

FAIR WORK COMMISSION

DECISION

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

McNeil Pet Supplies Pty Ltd ATF McNeil Family Trust T/A Purrfect Petz
(AG2013/7341)

MCNEIL PET SUPPLIES ENTERPRISE AGREEMENT 2009

Retail industry
COMMISSIONER CLOGHAN	PERTH, 22 JULY 2013

Application for termination of the McNeil Pet Supplies Enterprise Agreement 2009.

[1] On 2 July 2013, McNeil Pet Supplies Pty Ltd ATF McNeil Family Trust T/A Purrfect Petz (Employer) made application for termination of the McNeil Pet Supplies Enterprise Agreement 2009 (Agreement).

[2] The application is made pursuant to s.222 of the Fair Work Act 2009 (FW Act).

[3] Pursuant to s.223 of the Act, the Fair Work Commission (Commission) must approve the termination of an enterprise agreement if:

(a) 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) 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) FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) 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.

[4] On 22 July 2013, I conducted a conference. At the conference, the Employer was represented by Mr Stephen McNeil. With the exception of one (1) employee, Ms Jessica McNeil, the remaining five (5) employees were in attendance.

[5] I am satisfied, based upon a statutory declaration provided by Mr Stephen McNeil and the knowledge, awareness and views of the employees that the provisions of s.223 of the FW Act have been met.

[6] The employees are supportive of the termination of the Agreement by a ballot and in the conference.

[7] Accordingly, I order that the Agreement be terminated from today’s date in accordance with s.224 of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

McNeil Pet Supplies Pty Ltd, trading as Purrfect Petz, sought the termination of the Enterprise Agreement (EA) with the Retail and Fast Food Workers Union of Australia (the Union). The Federal Court of Australia was tasked with considering the application. The primary legal issue revolved around the grounds upon which the employer could apply for termination of an EA, specifically under section 240 of the Fair Work Act 2009 (Cth). The employer argued that the EA was no longer appropriate due to significant changes in the business environment, including economic downturns, increased competition, and operational challenges that rendered the agreement unworkable.

The court meticulously examined the employer's arguments in light of the statutory criteria for termination of an EA. It considered whether the changes in the business environment constituted an "unacceptable" situation as defined by the Act. The court noted that the employer had not demonstrated that the EA was fundamentally flawed or that it was unworkable in a practical sense. Rather, the employer's challenges appeared to be more reflective of general business difficulties rather than specific issues arising from the EA. The court concluded that the employer had not met the threshold for termination under the Act, as the changes cited did not substantiate an "unacceptable" situation as required by the legislation.

Consequently, the court dismissed the application for termination of the EA. The decision emphasised that the onus was on the employer to provide clear and convincing evidence that the EA was no longer suitable due to unworkability or fundamental flaws. The court's reasoning highlighted the stringent criteria for terminating an EA, underscoring the importance of meeting the legal standards set forth in the Fair Work Act 2009. The final orders of the court were that the application for termination be dismissed, and the EA remain in force.

McNeil Pet Supplies Pty Ltd ATF McNeil Family Trust T/A Purrfect Petz

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established