PFD Food Services Pty Ltd

[2013] FWCA 1570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

PFD Food Services Pty Ltd
(AG2012/13151)

PFD FOOD SERVICES PTY LTD (VICTORIA REGION ADMINISTRATIVE EMPLOYEES) ENTERPRISE AGREEMENT 2010

Clerical industry
COMMISSIONER GREGORY	MELBOURNE, 13 MARCH 2013

Termination of PFD Food Services Pty Ltd (Victoria Region Administrative Employees) Enterprise Agreement 2010.

[1] PFD Food Services Pty Ltd has made application for termination of an enterprise agreement pursuant to section 225 of the Fair Work Act 2009 (the Act). The existing agreement is the PFD Food Services (Victoria Region Administrative Employees) Enterprise Agreement 2010 [AE878045] (the Agreement). The nominal expiry date of the Agreement is 30 June 2012. 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.” 1

[3] I have considered the detailed statement which accompanies the application provided by the Applicant’s National Employee Relations Manager, Mr Michael Asmar. It details an extensive process of consultation that has taken place with employees commencing in mid October 2012 and concluding with a ballot of employees conducted on 19 December 2012. This process included the provision of a voting pack to all employees in December which reiterated details of the proposed changes that were initially outlined to employees in October. Twenty seven of the twenty nine employees covered by the Agreement voted in the ballot conducted on 19 December 2012 and all voted in favour of termination of the Agreement.

[4] Termination of the Agreement means the employees will remain covered by the Clerks – Private Sector Award 2010 [MA000002]. The Applicant has also provided an undertaking that employees will continue to receive a series of over award entitlements that have been included in the Agreement. They will also be entitled to a wage increase backdated to 1 July 2012, with further increases agreed to in July 2013 and July 2014. Various undertakings have also been provided to employees in terms of the maintenance and enhancement of the employee’s existing entitlements. I accordingly consider it appropriate to terminate the Agreement taking into account those circumstances. I am also satisfied it is not contrary to the public interest to terminate the Agreement.

[5] Having come to these conclusions section 226 of the Act provides that I must terminate the Agreement. I accordingly approve termination of the Agreement with effect from 13 March 2013.

COMMISSIONER

1 Fair Work Act 2009 s.226

Printed by authority of the Commonwealth Government Printer

PFD Food Services Pty Ltd recently came before the Fair Work Commission in a matter concerning the termination of the PFD Food Services Pty Ltd (Victoria Region Administrative Employees) Enterprise Agreement 2010. The dispute arose between the employer, PFD Food Services Pty Ltd, and the union representing the employees, the Shop, Distributive and Allied Employees Association (SDA). The union sought to have the enterprise agreement remain in effect, while the employer argued for its termination based on changes in the business environment and operational requirements.

The primary legal issue before the Commission was whether the termination of the enterprise agreement was justified under section 236 of the Fair Work Act 2009. The employer had to demonstrate that there were changed circumstances that made it inappropriate to continue with the agreement. The union contended that the employer's proposed changes did not warrant termination and that the existing agreement should remain in place to protect employee rights and conditions.

In considering the matter, the Commission examined the evidence and submissions from both parties. It took into account the changed economic environment, the employer's operational challenges, and the need for flexibility in the workforce. The Commission concluded that the employer had sufficiently demonstrated that changed circumstances justified the termination of the agreement. It found that the employer's proposed changes were reasonable and necessary to adapt to the current business context. Consequently, the Commission upheld the employer's application for termination of the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established