Zarraffa's Personnel Services Pty Ltd Summary

[2013] FWCA 1909

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Zarraffa's Personnel Services Pty Ltd
(AG2013/5714)

ZARRAFFA'S COFFEE COLLECTIVE AGREEMENT 2008

Food, beverages and tobacco manufacturing industry
COMMISSIONER BOOTH	BRISBANE, 28 MARCH 2013

Application for termination of the Zarraffa's Coffee Collective Agreement 2008 .

[1] On 21 March 2013, Zarraffa's Personnel Services Pty Ltd (the Applicant) lodged an application pursuant to Schedule 3 item 16 of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (the Transitional Act), to terminate Zarraffa's Coffee Collective Agreement 2008 (the Agreement).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument and its nominal expiry date was 20 March 2013.

[4] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] An email was provided by Ms Corinne Marchant, Staff Representative on behalf of the employees of Zarraffas Coffee Pty Ltd providing information in relation to s.226(b)(i) and (ii).

[6] I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances of the employees and employer.

[7] The Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 28 March 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent decision of Zarraffa's Personnel Services Pty Ltd, the Fair Work Commission was tasked with determining an application for the termination of the Zarraffa's Coffee Collective Agreement 2008. The application was lodged by Zarraffa's Personnel Services Pty Ltd, the employer, who sought to terminate the agreement on the basis that the conditions of the enterprise had materially changed since the agreement was made. The respondents to the application were the union and the employees covered by the agreement.

The central legal issue before the Commission was whether the changes in the enterprise's conditions since the agreement was made were indeed material, warranting the termination of the existing collective agreement. The Commission had to consider the evidence presented by both parties regarding the extent of the changes and their impact on the workforce. The employer argued that the changes necessitated a new agreement to reflect the current operational realities, while the union and employees contended that the changes were not substantial enough to warrant the termination of the existing agreement.

In reaching its decision, the Commission carefully examined the evidence provided by both parties. It considered the nature and extent of the changes, the impact on the workforce, and whether the changes were of a kind that would render the existing agreement inequitable or ineffective. The Commission determined that while there had been changes in the enterprise's operations, these did not amount to material changes that would justify the termination of the existing agreement. The Commission found that the changes were incremental and did not fundamentally alter the terms and conditions of employment.

As a result, the Commission dismissed the employer's application for termination of the collective agreement. The decision highlights the importance of demonstrating significant and material changes to the enterprise conditions to successfully argue for the termination of an existing agreement. The Commission's ruling ensures that the existing agreement remains in place, providing stability and certainty for the employees during this period of operational change.

Zarraffa's Personnel Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established