Absolute Outdoors Pty Ltd T/A Absolute Outdoors and Grampians Peaks Walking Company

[2023] FWCA 2644

[2023] FWCA 2644

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Absolute Outdoors Pty Ltd T/A Absolute Outdoors and Grampians Peaks Walking Company

(AG2023/2418)

ABSOLUTE OUTDOORS ENTERPRISE AGREEMENT 2019

Amusement, events and recreation industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 21 AUGUST 2023

Application for termination of the Absolute Outdoors Enterprise Agreement 2019

1. On 18 July 2023, Absolute Outdoors Pty Ltd T/A Absolute Outdoors and Grampians Peaks Walking Company applied to terminate the Absolute Outdoors Enterprise Agreement 2019 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act).

1. The Agreement has passed its nominal expiry date of 2 October 2022.

1. The Applicant is the sole employer covered by the Agreement. The Agreement covers Field Guide employees, Retail employees and Customer Service employees. There are no employee organisations covered by the Agreement.

1. The application was supported by a statutory declaration of Mr Manikas, Managing Director, dated 18 July 2023. Mr Manikas declared that there were employees covered or likely to be covered by the Agreement and that in terminating the Agreement and reverting back to the relevant awards, most, if not all employees would be better off overall.

1. On 26 July 2023, the Commission wrote to the Applicant in the following terms:

The Deputy President requests that the Applicant complete the following:

1.The Applicant is to send an email to its employees by no later than close of business 28 July 2023 in the following terms:

An application has been made by Absolute Outdoors Pty Ltd T/A Absolute Outdoors and Grampians Peaks Walking Company to terminate the Absolute Outdoors Enterprise Agreement 2019 [AE505442] (the Agreement).

The application has been allocated to Deputy President O’Neill of the Fair Work Commission.  In deciding whether to terminate the Agreement, the Deputy President is required to take into account the views of employees covered by the Agreement.

If the application to terminate the Agreement is successful, your minimum employment entitlements will be regulated by the applicable modern award.

If you have any views about the application to terminate the Agreement, please advise the Deputy President by email at chambers.o’[email protected] by no later than close of business 4 August 2023.

2. Following the email being sent, the Applicant is to provide Chambers with a further Statutory Declaration, setting out:

·     the action taken to distribute the above notice;

·confirmation of the number of employees covered by the Agreement and that all employees were emailed the above notice;

·clarification as to whether there are any employee entitlements in the Agreement that are more beneficial than the relevant modern award; and

·whether all of the Applicant’s employees who are presently covered by the Agreement will be covered by the Amusement, Events and Recreation Award [MA000080] and/or the General Retail Industry Award [MA000004].

1. Subsequently:

(a)No views were received from any employees;

(b)Mr Manikas filed a further Statutory Declaration dated 3 August 2023 declaring that there are currently 17 employees covered under the Agreement and that all employees received notice of this application to terminate the Agreement in accordance with the terms requested. Mr Manikas further declares that upon the Agreement’s termination, all employees will be covered by the Amusement, Events and Recreation (the Amusement Award) and the General Retail Industry Award (the Retail Award).

(c)Following further enquiries being made by my chambers, Mr Manikas submits that employees will be better off overall after the termination of the Agreement and confirmed that the Amusement Award and the Retail Award will apply to employees after the termination of the Agreement.

(d)In light of Mr Manikas’ original declaration that ‘most, if not all’ employees would be better off overall if the Agreement was terminated, separate analysis of the Agreement against the two awards was undertaken, confirming that all employees would be better off overall under the two Awards.

Consideration

1. In relation to s.225 of the Act, I am satisfied that the Agreement has passed its nominal expiry date and that the Applicant is entitled to make the application as an employer covered by the Agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended s.226 of the Act. The amendments took effect from 7 December 2022 and provide:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)   whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. I am satisfied that the continued operation of the Agreement would be unfair for the employees covered by it, because they would be better off overall under the Retail Award and the Amusement Award.

1. In relation to s.226(3), the employer seeks the termination of the Agreement, no employees provided any views in relation to the application and no employee organisations are covered by the Agreement.

1. On the material before the Commission, I am satisfied that none of the criteria in s.226(4) are relevant to this application.

1. Considering that there is no opposition to the application and that its continued operation would be unfair to the employees covered by it, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.

1. In accordance with s.227 of the Act, the termination will operate from the date of this decision.

DEPUTY PRESIDENT

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<AE505442  PR765385>