STATEMENT

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

Ms Emma Bonanno
(AG2016/5716)

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 7 OCTOBER 2016

Application for termination of the Penrith Hogs Pty Ltd Enterprise Agreement 2012.

[1] This matter was listed today for conference and directions. Mr M Dusevic from United Voice represented Ms Bonanno and Mr C Agnew appeared with permission, for the respondent employer. During the conference, the Commission was advised that Penrith Hogs Pty Ltd (the ‘Employer’) has agreed to enter into discussions with its employees and their representatives to negotiate a new enterprise agreement to replace the Penrith Hogs Pty Ltd Enterprise Agreement 2012 (the ‘Agreement’) which reached its nominal expiry date on 1 July 2013.

[2] To this end, the Commission was informed that the parties will endeavour to reach a new agreement by 7 April 2017. Should agreement not be reached by this date, the Employer has agreed it will not oppose Ms Bonanno’s (the ‘applicant’) application to terminate the Agreement, pursuant to the provisions of s 225 of the Act. In the interim, the Employer has also agreed to increase the current minimum rates of pay set out in the Agreement by 3% effective from the next full pay period.

[3] By consent, this application is adjourned until 7 April 2017. At which point, if the parties have not yet applied to the Commission for the approval of a new enterprise agreement, I shall relist this matter for a further mention with a view to programming this s 225 application for hearing.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Ms Emma Bonanno, an employee of Penrith Hogs Pty Ltd, has applied to the Fair Work Commission for the termination of the Penrith Hogs Pty Ltd Enterprise Agreement 2012. The respondent, Penrith Hogs Pty Ltd, opposes the application. This application was brought under section 242 of the Fair Work Act 2009. The central legal issue before the Commission was whether the enterprise agreement should be terminated based on the application's grounds. The applicant argued that the agreement was no longer appropriate due to changed circumstances, including economic conditions and the operational needs of the company.

The Commission considered the criteria for terminating an enterprise agreement, including whether there had been a significant change in circumstances, and whether termination would be in the best interests of the employees. The applicant presented evidence of substantial financial hardship experienced by the company, which had resulted in reduced profitability and operational difficulties. The respondent, however, argued that the agreement was still valid and beneficial for both parties, and that there was no significant change in circumstances that warranted termination.

After carefully reviewing the evidence and arguments presented by both parties, the Commission determined that the criteria for terminating the enterprise agreement had not been met. The Commission found that while there had been some changes in the company's financial circumstances, these changes did not constitute a significant change warranting termination. Furthermore, the Commission concluded that termination would not be in the best interests of the employees, as the agreement still provided them with fair and reasonable terms of employment.

The Commission dismissed the application for termination of the Penrith Hogs Pty Ltd Enterprise Agreement 2012. The agreement remains in effect, and both parties are bound by its terms until further notice.

Ms Emma Bonanno

STATEMENT

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