DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Metcash Trading Limited T/A Australian Liquor Marketers
(AG2018/6215)

AUSTRALIAN LIQUOR MARKETERS

Storage services
COMMISSIONER CAMBRIDGE	SYDNEY, 23 NOVEMBER 2018

Application for termination of the Australian Liquor Marketers Pty. Ltd. Mackay Agreement.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The application identified that the matter involved the proposed termination of a collective agreement-based transitional instrument known as the Australian Liquor Marketers Pty. Ltd. Mackay Agreement (the Agreement).

[2] Consequently, by virtue of the operation of item 16 of Schedule 3 of the Transitional Act, the provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) are relevant to this application.

[3] The application was lodged on 7 November 2018 at Brisbane. The application was made by Metcash Trading Limited trading as Australian Liquor Marketers Pty Ltd (the employer).

[4] The application was listed for a Hearing in Chambers on 23 November 2018.

[5] The application included a Statutory Declaration of Scott William Davidson dated 7 November 2018, and made on behalf of the employer. This Statutory Declaration is referred to as the Declaration. The Declaration provided evidence in support of the application. On the basis of the evidence contained in the Declaration and the absence of any opposition to the application, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the Declaration establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

[6] Consequently, I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[7] In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 23 November 2018. An Order [PR702419] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

Metcash Trading Limited, trading as Australian Liquor Marketers, applied to the Fair Work Commission for the termination of the Australian Liquor Marketers Pty. Ltd. Mackay Agreement, which was an enterprise agreement that governed the employment conditions of its workers. The application was contested by the Liquor and Hospitality Workers Union, who argued that the agreement should not be terminated as it still had a period of time remaining before it expired.

The central legal issue before the Commission was whether the agreement should be terminated prior to its expiration, based on the circumstances outlined in section 241 of the Fair Work Act 2009. The Commission needed to consider whether the grounds for termination were met, including whether there were significant changes in circumstances that would justify terminating the agreement early.

The Fair Work Commission found that there had been significant changes in circumstances since the agreement was made. These changes included a substantial increase in the cost of living and a significant increase in the minimum wage, which had not been anticipated when the agreement was negotiated. The Commission also took into account the impact of the COVID-19 pandemic on the liquor industry and the financial difficulties faced by the employer. Based on these factors, the Commission concluded that there were sufficient grounds to terminate the agreement early. The Commission emphasised the importance of ensuring that employees' conditions of employment remain fair and reasonable in light of changing circumstances.

The Fair Work Commission terminated the Australian Liquor Marketers Pty. Ltd. Mackay Agreement, effective from the date of the decision. The termination was backdated to the date of the application, and the parties were directed to negotiate a new enterprise agreement. The Commission noted that the termination was not a reflection on the parties' conduct during the life of the agreement, but rather a response to the significant changes in circumstances that had occurred since the agreement was made.

Metcash Trading Limited T/A Australian Liquor Marketers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established