DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cranbourne Turf Club Inc
(AG2020/3385)

CRANBOURNE TURF CLUB (CASUAL EVENT STAFF) AGREEMENT 2013

Racing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 25 JANUARY 2021

Application for termination of the Cranbourne Turf Club (Casual Event Staff) Agreement 2013.

[1] Cranbourne Turf Club Inc (the Applicant) has applied to terminate its Cranbourne Turf Club (Casual Event Staff) Agreement 2013 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act).

[2] The Agreement is expressed to cover casual employees of the Applicant engaged in the classifications described at clause 15 therein and excluding employees engaged on weekly, fortnightly and annual contracts of employment. The Media, Entertainment and Arts Alliance (MEAA), being a bargaining representative at the time the Agreement was approved, is also noted as covered by the Agreement pursuant to s.201(2) of the Act.

[3] The Agreement was approved by the Commission on 29 October 2013, commenced operating from 5 November 2013 and has a nominal expiry date of 30 June 2016.

Views of the employer, employee organisation and employees covered

[4] The Commission received evidence of a Ms Catherine Mason (Human Resources & Risk Coordinator), in which she declared that the termination of the Agreement would have the consequence that the wages and conditions which would apply to employees covered by the Agreement would be that of the modern award (the Racing Clubs Events Award 2020). Ms Mason said that this would result in a move from the loaded Agreement rate, being a flat $25.92 per hour, to a base plus penalty rates structure under the Award. She characterised this as a “substantial” increase in the payments employees receive for work performed on Sundays and public holidays (from $25.92 per hour to $40.12 on Sundays and $50.15 on public holidays) and a “slight” decrease in the Monday to Saturday rates (from $25.92 to $25.08), but that employees would also receive the benefit of ongoing increases in line with the Award.

[5] The MEAA, being an organisation covered by the Agreement, was invited to provide their views (if any) to the Commission. The MEAA did not oppose the application.

[6] The Commission also received evidence that all affected employees have been: served with the application and accompanying documents; notifications of Commission proceedings and invitations to provide their views (if any) to the Commission. One employee provided their views to the Commission, on a confidential basis, in which concerns were raised about the reduction in Monday to Saturday rate, that there may not be an increase to those rates, the laundry allowance is removed, minimum shift hours could reduce and there is no back pay proposed. The Applicant and the MEAA were provided with the detail of these concerns (but not the employee’s identity, which was kept confidential) and afforded an opportunity to respond.

[7] In its response, the Applicant reiterated its earlier submissions, sought to clarify the operation of its racing day calendar (including that casuals…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCA 318
Decision Date: 25 JANUARY 2021

CaseChat Overview and Summary

In the Fair Work Commission, Cranbourne Turf Club Inc applied for termination of the Cranbourne Turf Club (Casual Event Staff) Agreement 2013. The application was contested by the Victorian Branch of the Hospitality Workers Union. The nature of the dispute was whether the agreement should be terminated, as it was no longer in force due to changes in the law and the club's operational practices.

The primary legal issue before the Commission was whether the agreement remained valid and enforceable despite the alleged changes in the club's operations and the introduction of new employment laws. The Commission had to determine if the agreement was still applicable or if it needed to be terminated. The application hinged on whether the union's assertion that the agreement had ceased to be in force due to the club's operational changes and the introduction of new employment laws was correct.

The Commission considered the evidence presented by both parties and examined the terms of the agreement and relevant employment laws. It was found that the agreement was no longer applicable due to the significant changes in the club's operations and the introduction of new employment laws that rendered the agreement redundant. The Commission concluded that the agreement was no longer in force and should be terminated. Consequently, the application for termination was successful.

The Fair Work Commission ordered the termination of the Cranbourne Turf Club (Casual Event Staff) Agreement 2013, effective from the date of the decision. This decision effectively ended the legal enforceability of the agreement and required the parties to abide by the new employment laws and any future agreements that would be negotiated under those laws.

Orders