Coffs Harbour Deep Sea Fishing Club Ltd

[2015] FWCA 6897

[2015] FWCA 6897

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Coffs Harbour Deep Sea Fishing Club Ltd
(AG2015/5596)

COFFS HARBOUR DEEP SEA FISHING CLUB LIMITED ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 8 OCTOBER 2015

Application for termination of the Coffs Harbour Deep Sea Fishing Club Limited Enterprise Agreement [2009].

[1] This is an application filed by Coffs Harbour Deep Sea Fishing Club Ltd (the ‘applicant’ or the ‘Club’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’) which seeks to terminate the Coffs Harbour Deep Sea Fishing Club Limited Enterprise Agreement. Relevantly, the Agreement passed its nominal expiry date on 2 December 2013. This is a somewhat unusual application, as there is presently no employees covered by the Agreement, which I will shortly explain.

[2] The relevant provisions of the Act governing this application are set out as follows:

‘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 employees 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 is:

(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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[3] In a statutory declaration supporting the termination of the Agreement (Form F24C), Mr W Mabey, Tourism Consultant, explained that the Club had been placed into voluntary administration on 21 April 2015 and ceased trading on 27 April 2015. All staff were made redundant on this date. Meetings of the creditors were held on 1 and 26 May 2015 and a further period of 45 days was set for interested parties to formulate a Deed of Company Arrangement (DOCA). A proposal put forward by a community based group known as the ‘Save the Fishos Group’, was unanimously approved by creditors at a meeting on 29 July 2015. An executed DOCA was submitted to ASIC on 20 August 2015 and the Club was returned to the control of its Directors, subject to the terms of that document. Capital is proposed to be provided by a consortium known as North Coast Hotel Group and CHDSFC Pty Ltd and for the Club to reopen shortly.

[4] At a hearing of the application on 1 October 2015, Mr W Mabey appeared for the applicant. Mr Mabey explained that the Club had been struggling financially for a number of years. However, he submitted that as there were currently no employees engaged by the Club and in view of the changed business model, it would be in the public interest for the employees of the reopened Club to be covered by the Modern Award. He was aware of some discussions in relation to the re-employment of the redundant employees, but there had been no formal approaches at this stage. He also said that it was possible that the Club would reopen at the end of this month or perhaps in January or February 2016.

[5] Having considered Mr Mabey’s submissions and upon reviewing the application, I am satisfied that all of the requirements of the Act, in particular ss 225 to 227, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Accordingly, the Coffs Harbour Deep Sea Fishing Club Limited Enterprise Agreement is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 1 October 2015.

DEPUTY PRESIDENT

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