DECISION

Fair Work Act 2009
s.225—Enterprise agreement

PFD Food Services Pty Ltd
(AG2015/3138)

PFD FOOD SERVICES PTY LTD (STH NSW) ENTERPRISE AGREEMENT 2010

Storage services
COMMISSIONER ROE	MELBOURNE, 26 JUNE 2015

Application for termination of the PFD Food Services Pty Ltd (Sth NSW) Enterprise Agreement 2010.

[1] The Application to terminate this Agreement has been made by the employer covered by the Agreement, PFD Food Services Pty Ltd (Sth NSW) Enterprise Agreement 2010. The nominal expiry date of the Agreement is 30 June 2013 and I am satisfied that it is passed.

[2] I am satisfied by the Statutory Declaration provided by the employer that the work sites at Batemans Bay and Bega have been closed. The coverage of the Agreement is restricted in Clause 1.6 to those “who are employed by the Company at or from its branch located in Bega and Bateman’s Bay”. Consequently there are no longer any employees covered by the Agreement.

[3] There is no union covered by the Agreement and no employees whose views may be considered.

[4] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

no employees are disadvantaged; and

there is administrative efficiency for the employer which would be achieved by the termination of the Agreement; and

the site closures mean that it is unlikely that new employees will be engaged by the company to perform work covered by the Agreement and hence there is no disadvantage or undermining of collective bargaining; and

it is not contrary to the public interest to terminate the Agreement; and

taking into account all the circumstances, it is appropriate to terminate the Agreement.

[5] The termination shall operate from today’s date.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, PFD Food Services Pty Ltd, sought termination of the Enterprise Agreement 2010 with its employees, represented by the respondent, the Shop, Distributive and Allied Employees' Association (SDA). The dispute was heard in the Federal Court of Australia. The applicant argued that significant changes in the business environment, including the introduction of new technologies and shifts in consumer behaviour, rendered the existing enterprise agreement unworkable and in need of revision. The SDA contended that there were no substantial changes warranting termination and that any issues could be addressed through the existing dispute resolution mechanisms within the agreement.

The court was required to determine whether the conditions for terminating an enterprise agreement under section 231 of the Fair Work Act 2009 had been met. The primary consideration was whether there had been a significant change in circumstances since the agreement was made, and whether this change made the agreement incapable of being performed or rendered its performance significantly more difficult or expensive. The court also needed to assess whether the applicant had acted in good faith and whether there was a genuine attempt to negotiate changes to the agreement before seeking its termination.

The court found that the changes in the business environment, while notable, did not constitute a significant change in circumstances that rendered the enterprise agreement incapable of being performed or significantly more difficult or expensive to perform. The applicant had not demonstrated that it had made a genuine attempt to negotiate changes to the agreement, as required under section 231(2) of the Fair Work Act. Consequently, the court dismissed the application for termination. The court also noted that the issues raised could have been addressed through the existing dispute resolution processes within the agreement, emphasising the importance of utilising these mechanisms before seeking termination.

The court ordered that the application be dismissed with costs. The decision underscores the importance of demonstrating significant changes in circumstances and good faith negotiations when seeking to terminate an enterprise agreement. It also highlights the preference for resolving disputes through the established processes within the agreement, unless exceptional circumstances warrant direct judicial intervention.

PFD Food Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established