Crystal Thomson

[2021] FWCA 4408

[2021] FWCA 4408

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

Crystal Thomson
(AG2021/4317)

THE HADIOS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Hospitality industry
COMMISSIONER WILLIAMS	PERTH, 23 JULY 2021

Application for termination of the Hadios Pty Ltd Employee Collective Agreement 2009.

[1] This decision concerns an Application made by Ms Crystal Lee Thompson (Ms Thompson or the Applicant), the Applicant seeks to terminate the Hadios Pty Ltd Employee Collective Agreement 2009 (the Agreement). The application identifies Hadios Pty Ltd as the employer covered by the Agreement.

Background

[2] The matter was listed for hearing and directions were issued to the parties requiring the filing of evidence and submissions.

[3] The Applicant was self-represented. The Respondent made an application for permission to be represented by a lawyer or a paid agent.

[4] The Applicant filed materials consistent with the Commission’s directions on 2 June 2021.

[5] On 14 July 2021 the employer’s representative advised the Commission that the employer did not intend to oppose the Application and so did not intend to file a defence and proposed the matter be determined on the papers.

[6] The Applicant was provided with the opportunity to object to the matter being determined on the papers filed but has not done so.

[7] The effect of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 is that sections 225, 226 and 227 of the Act apply to this application.

[8] These sections are set out below.

“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.”

“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.”

Consideration

[9] I am satisfied that the Agreement has passed its nominal expiry date.

[10] I am satisfied that the Applicant is an employee covered by the Agreement.

[11] Consequently, this application has been properly made under section 225 of the Act.

[12] The Applicant has submitted material supporting her submission that the terms of the Agreement disadvantage employees to whom it applies compared to the benefits they would otherwise be enjoying if the relevant Award applied to their employment.

[13] I am satisfied that the employees covered by the Agreement would overall be in improved circumstances if the Agreement was terminated.

[14] There is no suggestion in this case that termination of the agreement would be contrary to the public interest.

[15] Taking into account all the circumstances detailed in section 226 of the Act my decision is that it is appropriate to terminate the agreement.

[16] The employer has requested that the date of termination should be no less than two weeks from the date of the decision to allow them to make the appropriate administrative changes in their payroll system. This is a reasonable and sensible approach.

[17] The Hadios Pty Ltd Employee Collective Agreement 2009 will be terminated on Monday, 9 August 2021.

[18] An Order [PR732029] reflecting this will now be issued.

Printed by authority of the Commonwealth Government Printer

<AC327405  PR732028>