Base Backpackers Pty Ltd

[2022] FWCA 984

[2022] FWCA 984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Base Backpackers Pty Ltd

(AG2021/9316)

BASE AND PALACE EMPLOYEE COLLECTIVE AGREEMENT 2008-2013

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 18 MARCH 2022

Application for termination of the BASE AND PALACE EMPLOYEE COLLECTIVE AGREEMENT 2008-2013

1. An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by Base Backpackers Pty Ltd (the Applicant) for approval to terminate the BASE AND PALACE EMPLOYEE COLLECTIVE AGREEMENT 2008-2013 (the Agreement). The nominal expiry date of the Agreement is 1 March 2013.

1. Sections 225 and 226 of the Act provide:

“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.”

Consideration

1. The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of 1 March 2013.

1. The Agreement does not cover any employee organisations.

1. The Applicant identified that the Agreement covers 77 employees.

1. On 22 November 2020 the Applicant held a secret ballot in relation to the application for the termination of the Agreement with its employees covered by the Agreement. Of those employees, 68 employees cast a vote, with 58 employees voting that they did wish for the Agreement to be terminated, and 10 employees voting that they did not wish for the Agreement to be terminated. The remainder did not vote.

1. On 24 January 2022, my Chambers directed the Applicant to advise the Applicant’s employees of the Application, and request that any submissions that those employees wished to make, be filed with the Commission.

1. The Applicant complied with the above Direction, and advised their employees of the Application, and the means by which they may make a submission to Chambers in respect of the Application. No submissions were received by the Commission from any employee of the Applicant.

Determination

1. Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that is not contrary to the public interest to terminate the Agreement.

2. Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

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<AC313863  PR739505>