Application by MP BDT Partnership T/A Blue Dolphin Holiday Resort Summary

[2024] FWCA 1370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Application by MP BDT Partnership T/A Blue Dolphin Holiday Resort

(AG2024/1252)

DEPUTY PRESIDENT CROSS

SYDNEY, 29 APRIL 2024

Application for termination of the Blue Dolphin Holiday Resort Enterprise Agreement 2014

MP BDT Partnership T/A Blue Dolphin Holiday Resort (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Blue Dolphin Holiday Resort Enterprise Agreement 2014 (the Agreement). The Agreement has passed the nominal expiry date of 12 March 2018.

Section 223 of the Act sets out the conditions to be met by an application under s.222 of the Act in the following terms:

“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.”

I am satisfied that each of the matters under section 223 of the Act have been met.
Section 224 of the Act provides that the termination operates from the day specified in the decision to terminate the agreement.

Accordingly, the Agreement will be terminated effective from 11:59pm, 29 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The MP BDT Partnership, trading as Blue Dolphin Holiday Resort, made an application under section 222 of the Fair Work Act 2009 to the Fair Work Commission for approval to terminate the Blue Dolphin Holiday Resort Enterprise Agreement 2014. The Agreement, which had already passed its nominal expiry date of 12 March 2018, was subject to this application for termination. The Deputy President of the Fair Work Commission, Cross, presided over the application in Sydney on 29 April 2024.

The legal issues the court had to address pertained to whether the termination of the enterprise agreement complied with the requirements of the Fair Work Act 2009, specifically sections 222 and 223. The Applicant needed to demonstrate that each employer had provided employees with a reasonable opportunity to decide on the agreement, that the termination was agreed to in accordance with the relevant subsections of section 221, and that there were no other reasonable grounds to believe employees had not agreed to the termination. Additionally, the Deputy President had to consider whether it was appropriate to approve the termination, taking into account the views of any employee organisations covered by the agreement.

The Deputy President found that the Applicant had satisfied all the conditions stipulated under section 223 of the Act. The employer had indeed given employees a reasonable opportunity to decide on the agreement, and the termination was in accordance with the relevant subsections of section 221. Furthermore, there were no reasonable grounds to believe that employees had not agreed to the termination. The Deputy President also considered it appropriate to approve the termination, taking into account the views of the employee organisation. Consequently, the termination of the Agreement was approved, effective from 11:59pm on 29 April 2024.

Application by MP BDT Partnership T/A Blue Dolphin Holiday Resort

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established