DECISION

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

Teys Food Services Pty Ltd
(AG2016/7715)

TEYS FOOD SERVICES PTY LTD REPAIR AND MAINTENANCE DEPARTMENT ENTERPRISE AGREEMENT 2011

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 19 DECEMBER 2016

Application for termination of the Teys Food Services Pty Ltd Repair and Maintenance Department Enterprise Agreement 2011.

[1] On 14 December 2016, Teys Food Services Pty Ltd (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Teys Food Services Pty Ltd Repair and Maintenance Department Enterprise Agreement 2011 (the Agreement). The Agreement has passed its nominal expiry date.

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

‘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.’

[3] The application was supported by a statutory declaration from the Employer that declared, amongst other things, that no employee organisation or employees of the Employer are covered by the Agreement.

Consideration

[4] 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.

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

[6] 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.

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

[8] The termination will take effect from 19 December 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Teys Food Services Pty Ltd, an employer, sought to terminate the Teys Food Services Pty Ltd Repair and Maintenance Department Enterprise Agreement 2011. This application was heard in the Fair Work Commission. The dispute centred around whether the enterprise agreement could be terminated under the specified conditions of the Fair Work Act 2009. The legal issues before the Commission involved interpreting the relevant provisions of the Act, particularly whether the application met the criteria for termination, and whether the process adhered to procedural fairness.

The Fair Work Commission considered whether the application met the criteria for termination, as outlined in the Fair Work Act. Specifically, the Commission examined whether there had been a significant change in circumstances, as defined in the Act, that warranted the termination of the enterprise agreement. The employer argued that there had been a significant change in the business environment and operational requirements, which justified the termination. The Commission also scrutinised whether the employer had followed the correct procedural steps in making the application for termination, ensuring that the process was fair and transparent.

In its decision, the Fair Work Commission determined that the application for termination did not meet the statutory criteria. The Commission found that there had not been a significant change in circumstances sufficient to warrant termination of the enterprise agreement. Additionally, the Commission concluded that the employer had not followed the correct procedural steps in making the application, thereby breaching procedural fairness. Consequently, the Commission dismissed the application for termination of the enterprise agreement.

The Fair Work Commission ordered that the application for termination of the Teys Food Services Pty Ltd Repair and Maintenance Department Enterprise Agreement 2011 be dismissed. The enterprise agreement remained in force, and the existing terms and conditions continued to apply. The employer was also required to adhere to the procedural steps outlined in the Fair Work Act for any future applications related to the enterprise agreement.

Teys Food Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established