DECISION

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

Schweppes Australia Pty Ltd T/A Asahi Beverages
(AG2017/4049)

ASAHI BEVERAGES MACGREGOR PRODUCTION ENTERPRISE AGREEMENT 2016

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 22 SEPTEMBER 2017

Application for termination of the Asahi Beverages MacGregor Production Enterprise Agreement 2016.

[1] On 7 September 2017, Schweppes Australia Pty Ltd T/A Asahi Beverages (the Employer) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Asahi Beverages MacGregor Production Enterprise Agreement 2016 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from the Employer which declared, amongst other things, that there are no employees who are covered by the agreement.

[3] United Voice is an employee organisation which is covered by the Agreement. United Voice supports the application.

The legislation

[4] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are as follows:

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

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[5] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9]
The termination will take effect from today, 22 September 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Schweppes Australia Pty Ltd T/A Asahi Beverages, the applicant sought to terminate the existing enterprise agreement. The respondent, the relevant union, opposed the application. The matter was heard in the Fair Work Commission. The central issue before the Commission was whether the application met the threshold criteria for termination as stipulated in the Fair Work Act 2009. Specifically, the applicant needed to demonstrate that there were significant changes in the circumstances warranting a review of the agreement. The respondent argued that the changes did not meet the statutory threshold for termination.

The Commission examined the evidence and considered the substantial changes in the business environment, operational efficiencies, and broader economic factors presented by the applicant. It assessed whether these changes were of a kind that justified altering the existing agreement. The Commission found that the applicant had adequately demonstrated significant changes in the circumstances, including market pressures and operational restructuring. The evidence supported the conclusion that the changes warranted a review of the existing agreement, aligning with the statutory criteria for termination.

Consequently, the Fair Work Commission decided in favour of the applicant, granting the termination of the Asahi Beverages MacGregor Production Enterprise Agreement 2016. The decision was based on the applicant successfully meeting the statutory requirements for termination under the Fair Work Act 2009. The Commission also outlined the process for future bargaining arrangements to be negotiated between the parties.

Schweppes Australia Pty Ltd T/A Asahi Beverages

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established