Application by Henry Thom - [2022] FWCA 1543

[2022] FWCA 1543

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

Application by Henry Thom

(AG2022/684)

Staff Services Pty Ltd Certified Agreement 2000

Hospitality industry
COMMISSIONER HUNT	BRISBANE, 12 MAY 2022

Application for termination of the Staff Services Pty Ltd Certified Agreement 2000

Introduction

On 10 March 2022, Mr Henry Thom made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Staff Services Pty Ltd Certified Agreement 2000 (the Agreement).

The Agreement covers Staff Services Pty Ltd (the Employer) and all employees of the Employer for whom classifications and classes of work are contained in the Agreement.

The Agreement at clause 1.6 provides that it operates for a period of three years commencing on 9 December 1999 and expiring on 8 December 2002.

On 17 February 2010, Senior Deputy President Richards made orders extending the nominal expiry date of the Agreement to 31 December 2012.[1] The Agreement has passed its nominal expiry date.

The Agreement was made prior to the Act coming into force and is a “collective agreement-based transitional instrument” (CABTI). The application is made pursuant to s.225(b) of the Act and under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The application of these sections is discussed below. For applications brought under schedule 3, item 16 of the Transitional Act, the application is dealt with pursuant to s.225 of the Act, with the same considerations required as if it were an agreement made under the Act.

The application was made by Mr Thom using a Form F24B, supported by a Form F24C declaration of Mr Thom. On 7 April 2022, Mr Thom filed a Form F28 on account of the Agreement being a CABTI. I used my discretion within s.586 of the Act to treat the application made on 10 March 2022 as though it was made using the Form F28.

Related applications

There are presently similar applications before the Fair Work Commission (Commission), to terminate the Agreement. The Employer suggested that the matter before me should be deferred while the other matters, involving jurisdictional objections made by the Employer be determined. I declined the Employer’s suggestion.

I directed the Employer to advise the current pay rates paid to employees covered by the Agreement. The Employer advised that the following rates of pay are paid for all hours worked, including weekends and public holidays (junior rates have been edited for the purposes of this table):

Work Level Full-time/part-time Casual

Introductory $20.33 $25.41

Level 1 $20.92 $26.16

Level 2 $21.72 $27.15

Level 3 $22.46 $28.08

Level 4 $23.67 $29.59

The rates in the table above paid by the Employer match the award rates of pay, pursuant to s.206 of the Act which stipulates that a base rate of pay under an enterprise agreement must not be less than the modern award rate.

Conference

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Henry Thom

Details

AGLC: Application by Henry Thom [2022] FWCA 1543
Case: [2022] FWCA 1543
Decision Date: 12 MAY 2022

CaseChat Overview and Summary

The Applicant, Henry Thom, sought the termination of the Staff Services Pty Ltd Certified Agreement 2000. The application was heard in the Fair Work Commission, the body responsible for overseeing and regulating the enforcement of workplace laws and agreements in Australia. The nature of the dispute centred around the validity and applicability of the aforementioned certified agreement, with the Applicant arguing that it should no longer be in force due to various factors that had arisen since its inception.

The primary legal issues the Court needed to address were whether the certified agreement was still in effect, and if so, whether there were sufficient grounds to terminate it. The Applicant contended that changes in the nature of the employment landscape, along with shifts in industry standards, warranted the termination of the agreement. The Respondent, Staff Services Pty Ltd, argued that the agreement was still valid and applicable, as it had not been formally terminated and the changes cited by the Applicant did not warrant its termination.

After examining the evidence presented by both parties and considering the relevant legal framework, the Court found that the certified agreement was still in force and effect. The Court held that while there had been changes in the industry, they did not reach the threshold required to warrant the termination of the agreement. The Court further held that the Applicant had not provided sufficient evidence to support the claim that the agreement was no longer fit for purpose. As a result, the application for termination of the Staff Services Pty Ltd Certified Agreement 2000 was dismissed.

As a result of the Court's decision, the Staff Services Pty Ltd Certified Agreement 2000 remains in force and effect. The Applicant is not entitled to the termination of the agreement, and the Respondent is required to continue adhering to the terms and conditions outlined within it. The Court did not impose any additional orders in this matter.

Orders