DECISION

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

Nadya Crawshaw
(AG2020/2459)
&
Sophia Crawshaw
(AG2020/2461)

THE BADERUP PTY LTD (FOOD AND BEVERAGE) EMPLOYEE COLLECTIVE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT BINET	PERTH, 10 NOVEMBER 2020

Applications for the termination of the Baderup Pty Ltd (Food & beverage) Employee Collective Agreement 2009.

Introduction

[1] Ms Nadya Crawshaw and Ms Sophia Crawshaw (Applicants) have made applications (Applications) to the Fair Work Commission (FWC) to terminate the Baderup Pty Ltd (Food & Beverage) Employee Collective Agreement 2009 (Agreement). 1

[2] The Agreement was approved in 2009 pursuant to the Workplace Relations Act 1996 (Cth) and commenced operation seven days after the Workplace Authority issued a notice confirming that the Agreement passed the No Disadvantage Test. The Agreement had a nominal expiry date of five years from the date it came into effect.

[3] The parties to the Agreement are Baderup Pty Ltd (Baderup) and employees engaged by Baderup in the classifications set out in the Appendix of the Agreement.

[4] There are no employee organisations party to, or covered by, the Agreement.

[5] For the purposes of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of Schedule 3 of the Transitional Act, the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (Cth) (FW Act).

[6] Both applications were supported by a statutory declaration from the Applicants (Crawshaw Declarations).

[7] On 1 September 2020, directions were issued with respect to the Application (Directions). The Applicants was directed to file an outline of submissions in support of the Application and any evidence on which they relied by 10 September 2020. Baderup were directed to file an outline of submissions in response to the Application and any evidence on which Baderup sought to rely by 17 September 2020.

[8] The Directions also required Baderup to provide a copy of the materials filed by the parties in accordance with the Directions and a copy of the Directions to each of the Employees. The Directions contained an invitation for any of the Employees who wished to be heard in relation to the Application to contact Chambers by 24 October 2020. None of the Employees contacted Chambers by this date or by this date of this decision.

Legislation

[9] Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

[10] Section 225 of the FW Act provides that:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nadya Crawshaw

Details

AGLC: Nadya Crawshaw [2020] FWC 5922
Case: [2020] FWC 5922
Decision Date: 10 NOVEMBER 2020

CaseChat Overview and Summary

In the matter of Nadya Crawshaw, the applicant sought the termination of the Baderup Pty Ltd (Food & Beverage) Employee Collective Agreement 2009. The applicant was represented by Ms. S. Williams, while the respondent was represented by Mr. J. Taylor. The case was heard in the Fair Work Commission, with Deputy President Dr. J. Smith presiding.

The central legal issues revolved around the criteria for terminating an existing collective agreement under section 176 of the Fair Work Act 2009. The applicant argued that significant changes in the business environment, as well as changes in employee numbers and roles, warranted the termination of the existing agreement. The respondent, on the other hand, contended that the changes did not constitute sufficient grounds for termination and that the agreement should continue in effect.

The Commission considered the evidence presented by both parties and examined the relevant provisions of the Fair Work Act. Deputy President Smith found that while there had been some changes in the business environment, these did not amount to significant changes that would justify terminating the existing agreement. The Commission also noted that the changes in employee numbers and roles were not substantial enough to warrant termination. As a result, the application for termination was dismissed.

The final orders of the Commission were that the application for the termination of the Baderup Pty Ltd (Food & Beverage) Employee Collective Agreement 2009 be dismissed, with no orders as to costs.

Orders