CaPTA Group Pty Ltd ITF Habitat Property Trust T/A Cairns and Port Trips & Attractions
[2025] FWCA 698
•21 FEBRUARY 2025
| [2025] FWCA 698 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225— Enterprise Agreement
CaPTA Group Pty Ltd ITF Habitat Property Trust T/A Cairns and Port Trips & Attractions
(AG2025/111)
CAPTA GROUP AGREEMENT
| Tourism & Amusement, Events and Recreation Industry | |
| DEPUTY PRESIDENT BUTLER | BRISBANE, 21 FEBRUARY 2025 |
Application for termination of the CaPTA Group Agreement after its nominal expiry date
On 15 January 2025, Capta Group Pty Ltd ITF Habitat Property Trust T/A Cairns and Port Trips & Attractions (‘the Applicant’) made an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (‘the Fair Work Act’) to terminate the CaPTA Group Agreement (‘the Agreement’)[1] after its nominal expiry date.
Legislative framework
Section 225 of the Fair Work Act provides, relevantly, that an employer covered by an enterprise agreement may apply for the Commission to terminate that agreement after its nominal expiry date. The Applicant is an employer covered by the Agreement. The Agreement has passed its nominal expiry date, which was 7 June 2016.[2] I am satisfied that the Applicant has standing to make the termination application.
Section 226 of the Fair Work Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.
The material before the Commission
The material before the Commission includes the originating application and an accompanying declaration of Mr Michael Woodward dated 14 January 2025. It also includes a statutory declaration of Mr Woodward dated 18 February 2025, and the annexure to that statutory declaration, which I will discuss below.
The basis for the application
The application relies on the first limb of subsection 226(1) of the Fair Work Act, which is that the Agreement’s continued operation would be unfair for the employees covered by it.
Consideration
I will first deal with subsection 226(3) of the Fair Work Act.
The Agreement covers seven employers and their employees. The Agreement does not cover any employee organisations.
On 5 February 2025 I issued Directions (‘the Directions’) requiring the Applicant to provide a copy of the originating application and the supporting declaration, along with a copy of the Directions, to all employers and employees covered by the Agreement.
The Directions required the Applicant to file in the Commission evidence of its compliance with the requirement to provide the various documents referred to above. In response to this Direction, the Applicant filed a statutory declaration of Mr Woodward dated 18 February 2025, confirming the documents had been sent to all employees. Mr Woodward annexed to his statutory declaration a copy of an email from Ms Cristy Pointing to all staff dated 10 February 2025, attaching those documents.
The Directions provided an opportunity for any employee or employer covered by the Agreement to file material in response to the application regarding their views, their circumstances, and/or the likely effect that the termination of the Agreement would have on them. That material was due by 18 February 2025.
The seven employers all shared the same contact details, including the same contact person for the application, also Ms Pointing. In those circumstances I am satisfied each employer was on notice of the application, the supporting declaration, and the Directions. No employer other than the Applicant sought to provide any views in relation to the application or the proposed termination of the Agreement. Therefore, it is open to me to proceed on the basis that all of the employers covered by the Agreement either support or do not oppose the application to terminate it.
Having regard to Mr Woodward’s statutory declaration of 18 February, I am also satisfied that all employees were on notice of the application to terminate, had a copy of the application and the supporting declaration, and had a copy of the Directions.
Though the Applicant provided employees with these documents, no employee filed any materials in response to the Directions. I therefore consider it is open to me to proceed on the basis that the employees also do not oppose the application to terminate the Agreement.
I now turn to subsection 226(1) of the Fair Work Act.
Paragraph (a) of that subsection provides that the Commission must terminate an enterprise agreement if it is satisfied that the continuing operation of the enterprise agreement would be unfair for the employees covered by the enterprise agreement.
No employee sought to express a view about, let alone contest, Mr Woodward’s declaration of 14 January 2025, filed in support of the application. Mr Woodward’s declaration stated that the Agreement is outdated and provides less favourable conditions compared with Amusement, Events and Recreation Award 2020 (‘the Modern Award’).[3] He argues that there are provisions in the Modern Award that are more beneficial to employees, including provisions in relation to penalty rates, allowances, and leave provisions. He says there is greater career development and role diversification under the Modern Award, and greater opportunity for career mobility. He also says the Modern Award contains more flexible provisions that better reflect the current needs of the industry and workforce. He states that employees are aware of the differences between their conditions under the Agreement, and those of others in the industry operating under the Modern Award, and that this is creating a sense of inequity and dissatisfaction. He argues that the Agreement no longer aligns with modern workplace practices or employee expectations including in relation to work-life balance, flexibility, and conditions. And he says that continuing to operate under an outdated Agreement hinders the organisation’s ability to attract and retain talent.
The Agreement commenced operating in September 2012. In the intervening period the minimum rates payable under the Modern Award have overtaken the minimum rates payable under the Agreement,[4] applying the 3% per year increase required under it.[5]
Overtime and penalty rates under the Modern Award[6] and the Agreement[7] are not the same but are broadly comparable. As the minimum rates payable for ordinary hours are greater under the Modern Award, the amounts paid for work attracting overtime or penalty rates will also be greater.
The Modern Award[8] provides for more types of allowances, and for more beneficial allowances, than the Agreement.[9] The Modern Award[10] provides for more types of leave than the Agreement.[11]
To Mr Woodward’s point about career mobility and role diversification, the Modern Award has eleven classification levels (an introductory level employee and Grades 1 through 10),[12] compared with only five in the Agreement (an introductory level, and Levels 1 through 4).[13] As to flexibility, the Modern Award contains an award flexibility provision[14] which, being more up-to-date than the equivalent provision in the Agreement,[15] contains more protections (including the requirement that an individual flexibility arrangement may be made only after the individual employee has commenced employment with the employer).[16] The Modern Award also explicitly directs the reader’s attention to the National Employment Standards in relation to requests for flexible working arrangements, and notes that disputes in that regard can be dealt with under the dispute settlement provision in the Modern Award, or under section 65B of the Fair Work Act.[17]
Having regard to the two instruments it is open to me to conclude that the continuing operation of the Agreement would be unfair to employees, and I do so.
I will now consider subsections 226(1A) and (5) of the Fair Work Act. Under subsection 226(1A), the Commission must terminate an enterprise agreement only if it is satisfied that it is appropriate in all the circumstances to do so. Subsection 226(5) provides that in deciding whether to terminate an enterprise agreement, the Commission may also have regard to any other relevant matter. No employer or employee covered by the Agreement has drawn to my attention any relevant matters beyond those contained in the application, Mr Woodward’s supporting declaration, and Mr Woodward’s subsequent statutory declaration and its annexure. I am not aware of any other relevant matters that would weigh against terminating the Agreement. I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.
I am satisfied that each of the requirements of section 226 of the Fair Work Act have been met. I have decided to terminate the Agreement. Pursuant to section 227 of the Fair Work Act, the termination of the Agreement will take effect on and from 27 February 2025. An order[18] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] AE896235.
[2] CaPTA Group Pty Ltd [2012] FWAA 7092 (‘Agreement’), [5].
[3] Declaration in relation to termination of an enterprise agreement after the nominal expiry date, Michael Woodward, 14 January 2025, 2-3.
[4] Amusement, Events and Recreation Award 2020 [MA000080] (‘Modern Award’) cl 16; Agreement cl 15.
[5] Modern Award cl 16; Agreement cl 15.4.
[6] Modern Award cl 20.
[7] Agreement, cl 22 in relation to overtime, and cl 23 in relation to weekend penalties.
[8] Modern Award cl 18.
[9] Agreement cl 16.
[10] Modern Award pt 6.
[11] Agreement, cls 24-26.
[12] Modern Award cl 12 and sch A.
[13] Agreement cl 15.
[14] Modern Award cl 5.
[15] Modern Award cl 7.
[16] Modern Award cl 5.3.
[17] Award cl 6.
[18] PR784663.
Printed by authority of the Commonwealth Government Printer
<AE896235 PR784662>
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