Yarra Valley Snack Foods Pty Ltd Summary

[2022] FWCA 1670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Yarra Valley Snack Foods Pty Ltd

(AG2022/1434)

Yarra Valley Snack Foods Pty Ltd and Australian Manufacturing Workers’ Union Enterprise Agreement 2019

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 20 MAY 2022

Application for termination of the Yarra Valley Snack Foods Pty Ltd and Australian Manufacturing Workers' Union Enterprise Agreement 2019

This decision concerns an application made by Yarra Valley Snack Foods Pty Ltd (YVSF) to terminate the Yarra Valley Snack Foods Pty Ltd and Australian Manufacturing Workers’ Union Enterprise Agreement 2019 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees that unanimously approved the termination.

The Australian Manufacturing Workers’ Union (AMWU) is covered by the Agreement. It has advised the Commission that it supports the application.

The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

Based on the material provided to the Commission by YVSF, including the declaration of Rachaele Scarlett, I am satisfied that each of the requirements in s 223 of the Act has been met. I am satisfied that YVSF complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as all 23 employees who cast a valid vote approved the termination. I am also satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination. Taking into account all of the circumstances, including the views of the AMWU, I consider that it is appropriate to terminate the Agreement, and I do so.

The day specified for the commencement of operation of the termination will be 30 May 2022 (see s 224).

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

The applicant, a manufacturer of snack foods, sought termination of an enterprise agreement with its employees represented by the Australian Manufacturing Workers' Union. The application was heard in the Fair Work Commission. The primary issue for the court was whether the applicant had established a genuine change in circumstances as required by section 241 of the Fair Work Act 2009. This section permits the termination of an enterprise agreement if there has been a significant change in circumstances since the agreement was made, and the agreement is no longer appropriate.

The applicant argued that a significant reduction in profitability, due to market forces and operational challenges, constituted a genuine change in circumstances warranting termination of the agreement. The union, on the other hand, contended that the applicant had not demonstrated such a change, and the enterprise agreement remained appropriate. The court considered the evidence provided by both parties and examined the financial and operational conditions of the applicant. The tribunal found that the applicant had not sufficiently demonstrated a genuine change in circumstances, and therefore, the application for termination was dismissed. The enterprise agreement remained in force, binding both the applicant and the union.

Yarra Valley Snack Foods Pty Ltd

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