Cranbourne Turf Club Inc

[2021] FWCA 318

[2021] FWCA 318

FAIR WORK COMMISSION

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 are rostered to work a minimum of 5 hour shifts in practice) and contended that the decrease in Monday to Saturday rates would be offset by the higher Sunday and public holiday rates and increases to Award rate (including a 1.75% increase due to take effect from 1 February 2021, 1 reducing the real value of the decreased rates to a “marginal” difference of around 0.40c per hour, and compared to no entitlement to wage increases since the Agreement expired in June 2016). It further contended that, whilst the uniform allowance would operate differently under the Award, employees would also be entitled to other benefits including allowances for footwear for wet work, reimbursement for destroyed clothing and a meal allowance in certain circumstances of overtime. The concerned employee was provided with this information and gave a further response asking the Commission to consider the matters raised in assessing the application.

Consideration

[8] On the materials now before the Commission, including the views of the persons and organisations covered by the Agreement where they were expressed, I have decided to determine the application on the papers.

[9] I have taken into account all the materials before the Commission, including the differences in conditions between the Award and the Agreement (and where those differences amount to more and less favourable conditions), in reaching the conclusion that the termination of the Agreement is not contrary to the public interest. I am satisfied in the present case that it is not contrary to the public interest to terminate the Agreement.

[10] Next I am required to consider whether it is “appropriate” to terminate the Agreement, taking into account all the circumstances including the views of the employees, each employer and each employee organisation that will be covered by the Agreement and the circumstances of those employees, employers and organisations, including the likely effect that the termination will have on each of them. The view of the employer, as the Applicant, is that the Agreement should be terminated and that this is appropriate given the Award provides for contemporary terms and conditions that are relevant to its industry and, it contends, that any reductions are slight and will be offset by applicable increases. The only other views expressed are of one employee. Having considered those concerns and the Applicant’s responses, I am satisfied that there is a decrease in Monday to Saturday rates, being 0.41c per hour from 1 February 2021, which is offset by the significantly higher Sunday and public holiday rates which on the evidence may be worked on a number of occasions during the racing calendar. The 5 hour minimum shift engagement will continue to be applied by the Applicant, and there are some new allowances that may apply. There is no entitlement to future wage increases or back pay under the Agreement and minimum wage increases will be applied in line with Commission decisions under the Award. Taking into account the views of the persons referred to in s.226(b) that have been presented to the Commission, and the circumstances of those persons, as well as the effect that termination will have on each of them, I consider that it is appropriate to terminate the Agreement.

[11] As I have concluded that it is not contrary to the public interest to terminate the agreement, and that it is appropriate to do so taking into account all the circumstances including those in s.226(b), the Act requires me to terminate the Agreement. Pursuant to s.227, the termination operates from the day specified in the decision. In all of the circumstances, I consider it appropriate that the termination takes effect on and from the effective date of the increase to Award wages. Accordingly, I terminate the Agreement with effect from 1 February 2021.

DEPUTY PRESIDENT

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 1  Annual Wage Review 2019–20 [2020] FWCFB 3500, [180] – [187].