Campus Living Villages Pty Ltd T/A Campus Living Villages
[2023] FWCA 1792
•10 JULY 2023
| [2023] FWCA 1792 |
| 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
Campus Living Villages Pty Ltd T/A Campus Living Villages
(AG2023/1926)
CAMPUS LIVING VILLAGES RESIDENT ASSISTANT COLLECTIVE AGREEMENT 2009
| Hospitality industry | |
| DEPUTY PRESIDENT CROSS | SYDNEY, 10 JULY 2023 |
Application for termination of the Campus Living Villages Resident Assistant Collective Agreement 2009 (AC327529)
An application has been made pursuant to Schedule 3, Item 16 of the Fair Work Act (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the FW TPCA Act) by Campus Living Villages Pty Ltd T/A Campus Living Villages (the Applicant) for approval to terminate the Campus Living Villages Resident Assistant Collective Agreement 2009 (the Agreement). The nominal expiry date of the Agreement is August-December 2012.
Schedule 3 Item 16 of the FW TPCA Act provides:
[1]Schedule 3 Item 16 of the FW TPCA Act provides:
“16 Collective agreement‑based transitional instruments: termination by the FWC
(1)Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”
Submission D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) includes ss 225 and 226 of the Act. Those sections 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
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 August-December 2012.
The Agreement does not cover any employee organisations.
The Applicant wrote to the employees covered by the Agreement on 22 June 2023 at 1:10PM, advising that any employee covered by the Agreement who wished to make submissions in relation to the Application was to provide their submissions to my Chambers via email by 4:00pm on 30 June 2023:
Good Afternoon,
Following the email sent on Friday 16 June 2023, please see attached confirmation email from the Fair Work Commission.
Please note that any employee who wishes to make any submission in relation to the application (AG2023/1929 - Application by Campus Living Villages Pty Ltd T/A Campus Living Villages) is to email [email protected] with their submissions, by 4:00pm 30 June 2023.
I have attached the current RA Agreement, and Fair Work Documentation for you reference.
Please do not hesitate to reach out to myself or your manager if you have any questions.
Kind Regards,
Elyse
No employee submissions were received.
A Hearing was held at 2:00PM on 6 July 2023 via Video, during which I made a note of a typographical error in the Applicants initial application form F28 and subsequent Form 24B, to which they appeared to have put ‘123’ Employers as opposed to ‘123’ Employees covered by the agreement. This typographical error was recognised and corrected during the Hearing. Mr Huber confirmed that there were 123 casual employees covered by the agreement.
In the Statutory Declaration Form F24C, in response to question 2.1, Mr Huber stated:
The Agreement is a zombie agreement for the purposes of the Fair Work Act 2009 and accordingly is due to be “sunsetted” on 7 December 2023. We are requesting to terminate the Agreement earlier than 7 December 2023 to ensure the employees covered are able to receive more favourable benefits under an applicable Award (the Miscellaneous Award 2023) including penalty rates which provide a more favourable outcome for relevant employees (as they predominantly work weekends and evenings). Terminating the Agreement early will also allow the business to change employee rosters to ensure they are paid more favourable penalty rates and their hours of work reflect the actual time worked, and for these reasons we believe that waiting until December 2023 for the Agreement to terminate would be unfair to our employees
I accept that the Application has been pursued in order to act before the 7 December 2023 termination date.
Mr Huber answered as follows in relation to question 2.3(a) of the Form F24C:
The continued operation of the Agreement would not pose a significant threat to the business until October 2023. However, if we wait until the Agreement is automatically sunsetted (on 7 December 2023) this would pose a threat to the viability of our business. This is because November marks the beginning of the peak period of work for the employees covered by the Agreement. The period from November-January sees a significant increase in workload for the business, additional shifts, customer interactions and longer hours including weekend and late night shifts. Transitioning to a new pay structure and associated new rostering arrangements during this time would be extremely detrimental to the business as it would cause significant disruption to the business due to training, handling queries and associated payroll changes and guiding our employees through the change in their employment conditions to the applicable Award. We are proposing that by terminating the Agreement earlier, we avoid any threat to the operational viability of the business (during the November-January peak period)
I accept this position that the employees covered by the Agreement will be better off.
During the Hearing, I enquired about further proof that the email referred to in paragraph [6] above was dispatched to all employees. The confirmation email that was initially forwarded to my Chambers, withheld the names of the employees it was claimed to be sent to. I issued further directions for the Applicant to provide proof of the recipients (being the employees) by 4:00PM on 7 July 2023.
The Applicant provided this evidence at 2:53PM on the same day as the Hearing, and as such I am satisfied that they meet the stipulated requirements of s.226(b)(i).
Determination
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 it is not contrary to the public interest to terminate the Agreement.
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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