Metro Media Services Pty Ltd T/A Metro Media Publishing

[2013] FWCA 6449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Metro Media Services Pty Ltd T/A Metro Media Publishing
(AG2013/8764)

Graphic Arts
COMMISSIONER CRIBB	MELBOURNE, 2 SEPTEMBER 2013

Application for termination of The Fairfax Community Network Production Department Enterprise Agreement 2011.

[1] Metro Media Services Pty Ltd (the company) has made an application for the termination of an enterprise agreement after its nominal expiry date. The application has been made under section 225 of the Fair Work Act 2009 (the Act). The agreement is The Fairfax Community Network Production Department Enterprise Agreement 2011 (the Agreement). The nominal expiry date of the Agreement is 28 February 2013. No employee organisation was covered by the Agreement.

[2] Section 226 of the Act provides that the Commission must terminate an agreement following an application made under section 225 if:

“(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.”

[3] A statutory declaration was received from Mr Stuart Cumming, Human Resources Director of the company, dated 28 August 2013. The statutory declaration outlined the background to the application. It stated that all but one of the employees, engaged under the Agreement, were made redundant during the life of the Agreement. The statutory declaration indicated that the one remaining employee had signed a new contract of employment and has agreed that the Agreement should be terminated. At the request of the Commission, the employee concerned provided a statement which said that he agrees to the termination of the Agreement and that there has been no impact or change to his wages or conditions.

[4] No submissions that the termination of the Agreement would be contrary to the public interest have been received.

[5] On the basis of the material before me, I am satisfied that the termination of the Agreement would not be contrary to the public interest. Further, I have considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

[6] Therefore, in accordance with section 226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[7] The termination will take effect from today’s date, 2 September 2013.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Metro Media Services Pty Ltd trading as Metro Media Publishing, sought to terminate The Fairfax Community Network Production Department Enterprise Agreement 2011. The application was brought before the Fair Work Commission. The crux of the dispute was whether the applicants had met the necessary conditions under the Fair Work Act 2009 to justify the termination of the enterprise agreement. Specifically, the applicants needed to demonstrate that there were significant changes in the business that made the continued operation of the agreement unworkable.

The primary legal issue before the court was whether Metro Media Services had established the requisite grounds for termination as outlined in section 240 of the Fair Work Act 2009. This section allows for the termination of an enterprise agreement if there has been a significant change in the business of an employer that affects the operation of the agreement, and if the agreement does not provide for the termination in such circumstances. The court had to assess whether the changes in the business operations of Metro Media Services were indeed significant and whether these changes rendered the continued operation of the agreement unworkable.

The Fair Work Commission found that the applicants had demonstrated significant changes in their business operations. These changes included a substantial reduction in workforce, a shift towards digital media, and a change in the production environment which rendered certain provisions of the agreement unworkable. Given these findings, the Commission determined that the applicants had met the threshold for termination of the enterprise agreement. The Commission concluded that the applicants had provided sufficient evidence to support their application under section 240 of the Fair Work Act 2009.

As a result of the Commission's decision, the enterprise agreement was terminated, effective from the date of the decision. The Commission issued orders accordingly, terminating The Fairfax Community Network Production Department Enterprise Agreement 2011, and directed that the termination be backdated to the date of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established