DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Pitt & Sherry (Operations) Pty Ltd T/A pitt&sherry
(AG2021/4483)

PITT&SHERRY GROUP ENTERPRISE AGREEMENT 2017

Tasmania
COMMISSIONER LEE	MELBOURNE, 15 APRIL 2021

Application for termination of the Pitt&Sherry Group Enterprise Agreement 2017.

[1] On 31 March 2021, Pitt & Sherry (Operations) Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Pitt&Sherry Group Enterprise Agreement 2017 (Agreement). 1

[2] The Agreement has a nominal expiry date of 13 June 2021. There are no employee organisations covered by the Agreement.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] In the circumstances and based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant has complied with s.220(2) of the Act and that, having regard to the matters identified in ss.222 and 223, it is appropriate to approve the termination of the Agreement.

[5] The termination will operate from the date of this decision. An order giving effect to this decision is separately issued. 2

COMMISSIONER

1 AE424634

2 PR728652

Printed by authority of the Commonwealth Government Printer

Pitt & Sherry (Operations) Pty Ltd T/A pitt&sherry sought the termination of the Pitt&Sherry Group Enterprise Agreement 2017. The matter was heard in the Fair Work Commission. The dispute centred around whether the agreement had become inoperative due to a lack of continuing application, as defined in the Fair Work Act 2009. Specifically, the company argued that the workforce had been reduced to such an extent that the agreement no longer applied to the majority of employees.

The legal issues before the Commission involved interpreting the requirements for an enterprise agreement to cease being applicable and whether the reduction in the workforce constituted a significant change in circumstances warranting termination. The Commission examined whether the reduction was due to ordinary business operations or if it was a deliberate move to avoid the agreement's provisions. The company's submissions highlighted that the reduction was part of its restructuring efforts and not a strategic action to terminate the agreement.

The Commission found that the reduction in workforce was a result of the company's ordinary business operations and not a deliberate attempt to nullify the agreement. The Commission concluded that the agreement remained applicable as it continued to cover the remaining employees. The application for termination was dismissed, and the agreement remained in force for the employees still employed by the company.

The Commission ordered that the Pitt&Sherry Group Enterprise Agreement 2017 continue to apply to the remaining employees of Pitt & Sherry (Operations) Pty Ltd T/A pitt&sherry. The company's application for termination was rejected, and no further action was taken regarding the agreement's applicability.

Pitt & Sherry (Operations) Pty Ltd T/A pitt&sherry

DECISION

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