DECISION

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

Metcash Trading Limited (the holding company of Independent Hardware Group and Mitre10 Australia Pty Ltd) T/A Metcash Trading Limited
(AG2020/3316)

INDEPENDENT HARDWARE GROUP NEW SOUTH WALES DISTRIBUTION CENTRE EMPLOYEES ENTERPRISE AGREEMENT 2017

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COMMISSIONER CAMBRIDGE	SYDNEY, 13 NOVEMBER 2020

Application for termination of the Independent Hardware Group New South Wales Distribution Centre Employees Enterprise Agreement 2017.

[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 section 225 of the Fair Work Act 2009 (the Act). The application identified that the matter involved the proposed termination of an enterprise agreement known as the Independent Hardware Group New South Wales Distribution Centre Employees Enterprise Agreement 2017 (the Agreement).

[2] The application was lodged on 3 November 2020 at Sydney. The application was made by Metcash Trading Limited (the holding company of Independent Hardware Group and Mitre10 Australia Pty Ltd) (the employer).

[3] The application was listed for a Hearing in Chambers on 13 November 2020. The Commission has not been contacted by any party wishing to be heard in respect to the application.

[4] The application included the Declaration of Scott William Davidson,Senior Industrial Relations Manager of the employer dated 3 November 2020 (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.

[5] 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.

[6] In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 13 November 2020. An Order [PR724267] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

Metcash Trading Limited, acting as the employer for Independent Hardware Group and Mitre10 Australia Pty Ltd, applied to the Fair Work Commission to terminate the Independent Hardware Group New South Wales Distribution Centre Employees Enterprise Agreement 2017. The application was based on significant financial difficulties experienced by the company, which impacted its ability to meet the terms of the enterprise agreement. The Independent Hardware Group New South Wales Distribution Centre Union, representing the employees, opposed the application, arguing that the financial difficulties were due to poor business decisions rather than an inability to pay.

The primary legal issue before the commission was whether the financial hardship experienced by Metcash Trading Limited was genuine and not due to its own mismanagement. The commission needed to determine if the enterprise agreement's terms could not be met due to circumstances beyond the control of the employer. Additionally, the commission examined the impact of the proposed termination on the employees and whether there were adequate protections in place for them.

The commission found that Metcash Trading Limited did experience genuine financial hardship, which was not due to its own mismanagement. The company's financial difficulties were largely due to the effects of the COVID-19 pandemic, which had a significant impact on its operations. The commission concluded that the enterprise agreement's terms could not be met due to these circumstances. The commission also considered the impact on the employees and found that there were adequate protections in place for them, including redundancy payments and the right to apply for a JobKeeper payment. As a result, the commission granted the application for termination of the enterprise agreement.

Metcash Trading Limited (the holding company of Independent Hardware Group and Mitre10 Australia Pty Ltd) T/A Metcash Trading Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established