Metro Media Services Pty Ltd. Summary

[2014] FWCA 4860

FAIR WORK COMMISSION

DECISION

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

Metro Media Services Pty Ltd.
(AG2014/6650)

FAIRFAX COMMUNITY NETWORK CLASSIFIEDS DEPARTMENT ENTERPRISE BARGAINING AGREEMENT 2012

Clerical industry
COMMISSIONER ROE	MELBOURNE, 18 JULY 2014

Application for termination of Fairfax Community Network Classifieds Department Enterprise Bargaining Agreement 2012 by Agreement.

[1] This decision concerns an application made on 2 July 2014 by Metro Media Services Pty Ltd (the Applicant) pursuant to Section 222 of the Fair Work Act 2009 (the Act) to terminate the Fairfax Community Network Classifieds Department Enterprise Bargaining Agreement 2012 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 March 2014.

[3] The Statutory Declaration of the Applicant attests to the following:

● There are 5 employees covered by the agreement.
● On 26 June 2014 by show of hands vote they unanimously voted to terminate the agreement.
● They were given notification of the proposed termination on 17 June 2014 and were given the opportunity to discuss the matter with management.

[4] I am satisfied that the Applicant can make this application pursuant to Section 222 as it is an employer covered by the Agreement. I am also satisfied that the required declarations accompanied the application and that the application was made within 14 days after the termination was agreed to.

[5] I must approve the termination if the conditions set out in Section 223 are met.

“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.”

[6] There is no employee organisation covered by the Agreement.

[7] A declaration has been provided by the Applicant that it has satisfied the requirements in Section 223(a) and (b).

[8] The Applicant provided further information that:

● The number of employees covered by the Agreement has declined from 21 to 5.
● There are no other entities or persons affected by the application.
● The 5 remaining employees have all signed contracts of employment which effectively preserve the conditions under the Agreement.
● The employees were provided with information about the options available to them and were not pressured to agree to the termination of the Agreement.
● There is no bargaining for a new agreement nor any plans for bargaining for a new agreement.
● Employees were advised of the application, of the date and time for the hearing of the application and that they could make submissions to the Fair Work Commission. No submissions were made.

[9] There are no other reasonable grounds for believing that the employees have not agreed to the termination. There are no unions covered by the agreement.

[10] In considering whether or not it is appropriate to approve the termination it is relevant to consider the effect on bargaining and on the objective of encouraging collective agreement making. In this particular case if the application is granted a small group of employees will move from being covered by a collective agreement to being covered by the Modern Award supplemented by over award conditions which are documented in an individual contract. Although termination of the Agreement does not prevent bargaining being initiated in the future it makes it more difficult and less likely. This is a factor which stands against deciding that it is appropriate to terminate the Agreement. However, given that the employees have genuinely voted in favour of the termination and the other factors to which I have referred I consider that it is appropriate to approve the termination.

[11] The requirements of Section 223 have been met and I consider that it is appropriate to approve the termination.

[12] The termination shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Metro Media Services Pty Ltd applied to the Fair Work Commission to terminate the Fairfax Community Network Classifieds Department Enterprise Bargaining Agreement 2012. The dispute centred around the applicability and enforceability of the agreement within Metro Media Services, a company engaged in publishing and advertising services, which had acquired certain assets from Fairfax Media. The crux of the matter was whether the enterprise bargaining agreement, initially established between Fairfax Media and its employees, could be applied to Metro Media Services post-acquisition. The Commission was tasked with determining the scope of the agreement and its implications for the new employer.

The primary legal issues before the Commission were whether the agreement could be transferred to Metro Media Services and, if so, under what conditions. The Commission needed to examine the provisions of the agreement, the nature of the acquisition, and the extent to which the agreement's terms could be enforced against Metro Media Services. Furthermore, the Commission had to consider whether the transfer of the agreement to Metro Media Services was valid and whether there were any grounds for terminating the agreement.

The Fair Work Commission held that the enterprise bargaining agreement could indeed be transferred to Metro Media Services, subject to certain conditions. The Commission reasoned that the agreement was not only applicable to the acquired assets but also extended to the employees who continued to work for Metro Media Services. However, the Commission found that certain clauses within the agreement were not enforceable against Metro Media Services due to the specific circumstances of the acquisition and the nature of the services provided. The Commission concluded that while the agreement could be transferred, it required modifications to reflect the new employment landscape and the specific services provided by Metro Media Services. The Commission granted the application for termination of the agreement but allowed for its continued operation with necessary amendments.

The final orders of the Commission included the termination of the enterprise bargaining agreement with effect from a specified date, with provisions for the agreement to continue in operation with modifications. The Commission mandated that the necessary changes be made to the agreement to align it with the new operational realities of Metro Media Services, ensuring that the agreement remained fair and applicable to the employees involved.

Metro Media Services Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established