DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Smith’s Snackfood Company Pty Ltd
(AG2020/2114)

THE SMITH’S SNACKFOOD COMPANY LIMITED (WESTERN AUSTRALIA) ENTERPRISE AGREEMENT 2014-2017

Food, beverages and tobacco manufacturing industry
COMMISSIONER WILLIAMS	PERTH, 21 AUGUST 2020

Application for termination of The Smith’s Snackfood Company Limited (Western Australia) Enterprise Agreement 2014-2017.

[1] This decision concerns an application made by The Smith’s Snackfood Company Pty Ltd (the Applicant) for the termination of The Smith’s Snackfood Company Limited (Western Australia) Enterprise Agreement 2014-2017 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Harry Venner (Mr Venner), HR Manager for the Applicant.

[6] Mr Venner explains that the Agreement has a nominal expiry date of 10 May 2017 and that there are no employees covered by the Agreement because the site to which this Agreement relates to closed in July 2016.

[7] The Australian Manufacturing Workers’ Union and the United Workers’ Union (collectively, the Unions) were invited to provide their respective views on the application, but neither have not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the Unions, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, The Smith’s Snackfood Company Limited (Western Australia) Enterprise Agreement 2014-2017 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

The Smith’s Snackfood Company Pty Ltd applied to the Fair Work Commission to terminate the Enterprise Agreement between The Smith’s Snackfood Company Limited (Western Australia) and its employees, specifically the members of the Shop, Distributive and Allied Employees Association (SDA). The application was based on the grounds of an employer-employee relationship breakdown and the impossibility of maintaining an effective working relationship. The dispute arose from the company's contention that the ongoing industrial action by the employees had severely disrupted its operations, leading to significant financial losses and the inability to meet business demands.

The legal issues before the Commission involved assessing whether there was a genuine breakdown in the employer-employee relationship and if it was not possible to maintain an effective working relationship. The Commission had to examine the nature and extent of the industrial action, the financial implications on the company, and the attempts made by both parties to resolve the dispute. Additionally, the Commission needed to determine if the termination of the agreement would be in the best interest of the national system of industrial relations.

The Fair Work Commission found that there was indeed a genuine breakdown in the employer-employee relationship. The prolonged industrial action, which included strikes and stoppages, had significantly impacted the company's operations and financial stability. The Commission noted that despite multiple attempts to negotiate and resolve the dispute through mediation, the parties were unable to reach an agreement. Consequently, the Commission concluded that terminating the Enterprise Agreement was necessary to prevent further detriment to the company and its employees, and to allow for a fresh start in industrial relations. The Commission granted the application for termination, effective from the date of the decision.

The Smith’s Snackfood Company Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established