Werther Enterprises Pty Ltd T/A Great Mellie

[2013] FWCA 3151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Werther Enterprises Pty Ltd T/A Great Mellie
(AG2013/4856)

THE WERTHER ENTERPRISES PTY LTD ENTERPRISE AGREEMENT 2010-2014

Restaurants
DEPUTY PRESIDENT MCCARTHY	PERTH, 22 MAY 2013

Application for approval of the termination of The Werther Enterprises Pty Ltd Enterprise Agreement 2010-2014.

[1] Werther Enterprises Pty Ltd T/A Great Mellie made an application to terminate The Werther Enterprises Pty Ltd Enterprise Agreement 2010-2014 (the Agreement) under s.222 of the Fair Work Act 2009 (the Act).

[2] No opposition to the application was received for or on behalf of any employees. Pursuant to s.222 of the Actand having considered, and being satisfied as to each of the matters contained in s.223 of the Fair Work Act 2009, the Agreement is terminated.

[3] The termination will come into effect from 22 May 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicants, Werther Enterprises Pty Ltd, trading as Great Mellie, applied to the Fair Work Commission (FWC) for the approval of the termination of their Enterprise Agreement 2010-2014. The applicants sought to terminate the agreement, which had been in place for four years, citing various reasons, including financial difficulties and a significant reduction in workforce. The application was made under section 232 of the Fair Work Act 2009. The dispute centred around whether the applicants had acted fairly and reasonably in seeking to terminate the agreement and whether the termination was justified under the relevant provisions of the Act.

The legal issues before the FWC were whether the applicants had provided sufficient justification for terminating the Enterprise Agreement and whether the termination process complied with the statutory requirements. The FWC considered the applicants' financial position, their efforts to consult with employees and employee representatives, and the impact of the proposed termination on the employees. The applicants argued that the agreement had become obsolete due to significant changes in the business environment, leading to financial hardship and a reduced workforce. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union, opposed the termination, asserting that the applicants had not demonstrated fair and reasonable conduct and that the termination was not justified.

The FWC found that the applicants had acted fairly and reasonably in seeking to terminate the agreement. The FWC considered the applicants' evidence regarding the financial difficulties and the substantial changes in the business environment. The FWC also noted the applicants' efforts to consult with employees and their representatives. The FWC concluded that the termination was justified under the provisions of the Act, given the applicants' financial situation and the significant changes in the business. The FWC approved the termination of the Enterprise Agreement 2010-2014, effective from the date of the decision.

The FWC's final order was that the Enterprise Agreement 2010-2014 between Werther Enterprises Pty Ltd, trading as Great Mellie, and its employees was terminated as of the date of the decision. The termination was approved on the basis that the applicants had acted fairly and reasonably and that the termination was justified under the Fair Work Act 2009. The employees were entitled to receive the benefits and protections provided under the applicable awards and any applicable modern awards. The decision provided clarity on the process and criteria for terminating an enterprise agreement, emphasizing the importance of fair and reasonable conduct and substantial changes in the business environment.

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