Apex Queensland Youth Camps Limited

[2020] FWCA 3954

[2020] FWCA 3954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Apex Queensland Youth Camps Limited
(AG2020/890; AG2020/1817)

APEX QUEENSLAND YOUTH CAMPS LTD (ABN: 93010541474) ENTERPRISE AGREEMENT 2012; APEX QUEENSLAND YOUTH CAMPS LTD (ABN: 93010541474), MANAGEMENT TEAMS, ENTERPRISE AGREEMENT 2012

Amusement, events and recreation industry
COMMISSIONER SIMPSON	BRISBANE, 30 JULY 2020

Application for termination of the Apex Queensland Youth Camps Ltd (ABN: 93010541474), Enterprise Agreement 2012 and the Apex Queensland Youth Camps Ltd (ABN: 93010541474), Management Teams, Enterprise Agreement 2012

[1] Apex Queensland Youth Camps Limited (the Applicant) filed two applications pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Apex Queensland Youth Camps Ltd (ABN: 93010541474) Enterprise Agreement 2012 [AE894285] (the First Agreement) and the Apex Queensland Youth Camps Ltd (ABN: 93010541474), Management Teams, Enterprise Agreement 2012 [AE896194] (the Second Agreement) after its nominal expiry date.

[2] Both Agreements nominal expiry date was 31 January 2016.

[3] 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 the FWC for the termination of the agreement:

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

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

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.”

[4] No employee organisations are covered by the Agreements. There was initially some confusion as Mr Harris had believed both applications were filed together in March 2020 however due to an administrative error this was not the case, and the second application was subsequently filed.

[5] A statutory declaration of Mr Donnie Harris, Director, declared on 26 March 2020 was filed in the Fair Work Commission with the application for the First Agreement. A statutory declaration of Mr Donnie Harris, Director, declared on 24 June 2020 was filed in the Fair Work Commission with the application for the Second Agreement.

[6] The Applicant submitted that the Agreements did not include penalty rates as provided in the Modern Award and the Agreements do not provide for casual, part time or junior rates of pay as provided in the Modern Award.

[7] The Applicant submitted that the Agreements do not provide for allowances including meal, accommodation, uniform or first aid or casual conversion. Further the Award requires notice to change scheduled work times and a minimum engagement.

[8] Directions were issued in the case of both applications requiring that the Applicant to serve all employees a copy of the applications and to also serve on all employees a copy of directions from the Commission inviting any employee who wished to express their views to the Commission regarding the applications to do so by email to the email address of chambers as provided with the directions.

[9] Only one response was received from an employee, and that response was in regard to Second Agreement. That response raised a concern that under the Second Agreement the employee was entitled to a more generous leave loading and a bonus distribution every year.

[10] A submission was provided by the Applicant in response. The submission included that;

● The Applicant is not trading at the moment and has been closed since March due to COVID 19;
● The Applicant is utilising savings in order to maintain assets and business in the hope of recommencing trading but there is a time limit to how long the Applicant can continue to do that;
● The Applicant has applied for a Queensland Government Job Support Loan and is in receipt of the Federal Government Job Keeper subsidy;
● The Applicant submitted that the Modern Award provided penalties that the Agreements do not;
● The Second Agreement specifies roles that no longer exist, and the Modern Award provides for roles that do exist;
● The positions descriptions in the Agreements are outdated;
● The Bonus arrangement in the Second Agreement is discretionary and is also outdated.

[11] The Applicant provided the following undertaking for both applications:

“Apex Queensland Youth Camps Limited hereby undertakes that for a period of 12 months from the date of termination of the Apex Queensland Youth Camps, Management Teams, Enterprise Agreement 2012 and Apex Queensland Youth Camps Ltd Enterprise Agreement 2012 (the Enterprise Agreements), it will not reduce the hourly rates of permanent full time and part time staff who are in the employ of Apex Youth Camps prior to the termination of the Enterprise Agreements.”

[12] This matter was listed for an e-Hearing and no other correspondence has been received in objection to the application.

[13] On the basis of the material before me, having taken into account the views of the employer and employees as expressed to the Commission, I am satisfied that it is not contrary to the public interest to terminate the First Agreement or the Second Agreement and that termination of the Agreements is appropriate having regard to the circumstances of the employees and employer.

[14] I, therefore, determine that the First Agreement and the Second Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the Agreements shall operate from Monday 10 August 2020.

COMMISSIONER

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