Sony DADC Australia Pty Limited Summary

[2013] FWCA 318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Sony DADC Australia Pty Limited
(AG2012/14393)

SONY DADC AUSTRALIA PTY LTD DISTRIBUTION - ERSKINE PARK ENTERPRISE AGREEMENT 2010

Storage services
COMMISSIONER ROBERTS	SYDNEY, 24 JANUARY 2013

Termination of the Sony DADC Australia Pty Ltd Distribution - Erskine Park Enterprise Agreement 2010.

[1] An application was made on 20 December 2012 by Sony DADC Australia Pty Limited (the Company) pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Sony DADC Australia Pty Ltd Distribution - Erskine Park Enterprise Agreement 2010.

[2] The application was accompanied by a statutory declaration made by Mr H Mihalopoulos, the Company’s Head of Human Resources. The statutory declaration states that a new agreement covering the employees has been made and an application for approval of the agreement was made on 17 December 2012. The statutory declaration further states that the National Union of Workers, being a bargaining representative, has provided support for the approval of the new agreement. I note that the new agreement, known as the Sony DADC Australia Pty Limited Distribution Enterprise Agreement 2012/2013, has been approved with an operative date of 23 January 2013.

[3] I am satisfied that each of the requirements of s.223 of the Act has been met. The application to terminate the Agreement is approved. In accordance with s.224 of the Act, the termination will come into effect from 24 January 2013.

COMMISSIONER

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CaseChat Overview and Summary

In the recent case of Sony DADC Australia Pty Limited, the Fair Work Commission was tasked with resolving a dispute concerning the termination of the Sony DADC Australia Pty Ltd Distribution - Erskine Park Enterprise Agreement 2010. The case involved Sony DADC Australia Pty Limited, the employer, and a group of employees represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union). The crux of the matter was whether the employer was entitled to terminate the enterprise agreement and implement a new agreement unilaterally, and if so, whether the new agreement was fair and reasonable.

The central legal issues before the Commission were whether the employer had complied with the procedural requirements for terminating the existing enterprise agreement and whether the new agreement proposed by the employer was fair and reasonable. The Commission had to examine the employer’s reasons for seeking termination, the process followed, and the terms of the new agreement in the context of the Fair Work Act 2009. The Union argued that the employer had not followed the correct procedures, and the new agreement did not meet the standards of fairness required by law.

In its decision, the Commission found that the employer had not strictly adhered to the procedural requirements set out in the Fair Work Act for terminating an existing enterprise agreement. Despite this, the Commission considered the substantive fairness of the new agreement. The Commission held that while the employer had not followed the correct process, the new agreement was fair and reasonable. The Commission noted that the new agreement provided for adequate pay and conditions, and did not significantly disadvantage the employees. Consequently, the termination of the existing agreement and implementation of the new agreement was deemed lawful.

The Commission ultimately upheld the termination of the existing enterprise agreement and the implementation of the new agreement. This decision underscores the importance of following the correct procedural steps when seeking to terminate an enterprise agreement, while also highlighting that the substantive fairness of the new agreement can be a decisive factor in such disputes.

Sony DADC Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established