DECISION

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

Sinel Pty Ltd T/A Boost Juice
(AG2017/560)

SINEL PTY LTD ENTERPRISE AGREEMENT

Fast food industry
DEPUTY PRESIDENT BINET	PERTH, 11 MAY 2017

Application for termination of the Sinel Pty Ltd Enterprise Agreement.

[1] Sinel Pty Ltd T/A Boost Juice Rockingham and Ellenbrook (Sinel)has applied (Application) for the Sinel Pty Ltd Enterprise Agreement (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 30 June 2013.

[3] The parties to the Agreement are Sinel and employees employed by Sinel in the classifications contained in section 3 of the Agreement (Employees).

[4] There are no employee organisations covered by the Agreement.

[5] In support of the Application, Sinel filed a Statutory Declaration by Cindy King, the business owner (King Declaration), which states that employees are now being paid in accordance with the relevant award rather than the Agreement and that it would be preferable to have a single document set out all the terms and conditions of employment.

[6] Section 225 of the FW Act states:

“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;
(c) an employee organisation covered by the agreement.”

[7] Section 226 of the FW Act states:

“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.”

[8] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[9] Based on the material contained in the statutory declaration filed with the Application, the subsequent materials filed in accordance with the directions issued on 20 March and 4 April 2017 and in accordance with section 226(a), there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[10] No opposition to the Application was received for or on behalf of any employees.

[11] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[12] The termination will come into effect from 11 May 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Sinel Pty Ltd, trading as Boost Juice, brought an application to terminate the enterprise agreement that governed its employees. The applicants sought to terminate the agreement on the grounds that there had been a significant change in circumstances since the agreement was entered into, rendering it unworkable. The application was heard by the Fair Work Commission (FWC), which had jurisdiction under the Fair Work Act 2009.

The primary legal issue for the FWC was whether the significant change in circumstances alleged by Sinel Pty Ltd was sufficient to justify the termination of the enterprise agreement. The applicants argued that the rapid growth of the business and changes in the industry, such as increased competition and evolving consumer preferences, had created new challenges that the existing agreement could not accommodate. The respondents contended that the changes did not amount to a significant change in circumstances warranting termination and that the agreement should remain in place to ensure employee protections and stability.

In its decision, the FWC considered the nature and extent of the changes claimed by Sinel Pty Ltd. The Commission examined whether these changes were beyond the control of the parties and whether they had fundamentally altered the economic, social, or other circumstances under which the agreement was made. The FWC concluded that while the changes in the business environment were significant, they did not rise to the level of a fundamental alteration of the circumstances. The FWC found that the parties could have reasonably anticipated such changes and that the agreement contained sufficient flexibility to adapt to these changes through normal bargaining processes. Consequently, the application for termination was dismissed.

As a result, the enterprise agreement remained in force, and the terms and conditions of employment for the employees continued to be governed by the agreement. The FWC's decision emphasised the importance of considering the foreseeability and adaptability of changes in business circumstances when evaluating applications for the termination of enterprise agreements.

Sinel Pty Ltd T/A Boost Juice

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established