D.J. And M.A. Watts Pty. Ltd. Atf The Dj And Ma Watts Family Trust T/A Big4 Melbourne Holiday Park

Case •

[2023] FWCA 1803

•

21 JUNE 2023
[2023] FWCA 1803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

D.J. And M.A. Watts Pty. Ltd. Atf The Dj And Ma Watts Family Trust T/A Big4 Melbourne Holiday Park

(AG2023/1762)­­

MELBOURNE BIG4 HOLIDAY PARK ENTERPRISE AGREEMENT 2010

Hospitality industry

COMMISSIONER CONNOLLY

MELBOURNE, 21 JUNE 2023

Application for termination of the Melbourne Big4 Holiday Park Enterprise Agreement 2010

  1. On 6 June 2023, D.J. and M.A. Watts Pty Ltd. Aft the DJ and MA Watts Family Trust trading as the Big4 Melbourne Holiday Park Limited filed an application for termination of the Melbourne Big4 Holiday Park Enterprise Agreement 2010 (the Agreement) by agreement (Form F24), pursuant to s.222 of the Fair Work Act 2009 (the Act). The application was accompanied by a statutory declaration in relation to termination of an enterprise agreement by agreement (Form F24A) made by Ms Susan Peucker, Owner of the Big4 Melbourne Holiday Park. The Agreement is a single enterprise agreement which nominally expired on 17 February 2015.[1] The Agreement is expressed to cover D.J. and M.A. Watts Pty Ltd. Aft the DJ and MA Watts Family Trust trading as the Big4 Melbourne Holiday Park and its employees in the positions set out at clause 6 of the Agreement.[2]

  1. On 7 June 2023, the Application was allocated to me for determination.

  1. The Act relevantly provides as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1)  If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)  The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)  The application must be made:

(a)  within 14 days after the termination is agreed to; or

(b)  if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration

Section 222

  1. I am satisfied that the requirements of s.222(1), (2) and (3) of the Act are met.

  1. The application to terminate the Agreement by agreement has been made by D.J. and M.A. Watts Pty Ltd. Aft the DJ and MA Watts Family Trust trading as the Big4 Melbourne Holiday Park Limited, a person covered by the Agreement.

  1. The application was accompanied by the material required by the Fair Work Commission Rules 2013 (being made by Form F24 and accompanied by a Form F24A declaration setting out the basis upon which the FWC can be satisfied that the requirements of s.223 of the Act have been met.

  1. The application was filed with the Commission on the 6th of June 2023.  In its Form F24 the applicant stated the termination was agreed to on 30 May 2023. 

  1. On these bases, the requirements of s.222 are met.

Section 223

  1. I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

  1. I consider each of those requirements below.

Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)

  1. The provisions of s.220(2) are set out below:

Employer must take all reasonable steps to notify employees

Before making the request, the employer must:

(a)   take all reasonable steps to notify employees of the following:

(i)the time and place at which the vote will occur;

(ii)the voting method that will be used; and

(b)   give the employees a reasonable opportunity to decide whether they want to approved the proposed termination.

  1. In the Form F24A Ms Peucker stated the following steps were taken in respect of s.220(2)(a):

(a)By letter sent via email individually to all employees on 17 May 2023 the employer;

(i)informed employees of the employer’s intention to apply for a termination of the Enterprise Agreement;

(ii)requested that employees approve the proposed termination of the agreement by voting for it;

(iii)sought to inform employees of the effect the termination of the agreement would have on employees;

(iv)advised employees that voting would occur at the employer’s business address, being 265 Elizabeth Street, Coburg commencing 9am Thursday 25 May and concluding 5pm Tuesday 30 May 2023;

(b)On 17 May 2023 notice was also placed on the staff whiteboard that voting would open at 9am 25 May and remain open until 5pm 30 May 2023;

(c)A voting area was allocated in the staff room that was accessible and visible to all staff where a ballot box was placed, ballot papers could be collected, completed and returned to the ballot box;

(d)Copies of the ballot papers provided to employees and attached to Ms Peucker’s Form 24A;

(i)Informed employees of their options to vote either YES or NO for the proposed termination of the agreement;

(ii)Advised employees that their votes were secret and confidential and that they should not place any identifying marks on their completed ballot papers.

  1. On the 14th of June 2023, I convened a conference with the applicant to seek additional information pursuant to these provisions.  Specifically, information in relation to the integrity and timing of the vote conducted; and information provided to all employees, particularly casual employees, about the proposed termination to ensure they had a reasonable opportunity to decide whether they want to approve the proposed termination.

  1. The Form F24A provided to the Commission attested the steps were taken in respect of s.220(2)(b):

(i)The email letter sent electronically to all employees on the 17th of May 2023 sought to provide employees with information on the effect of termination of the agreement;

(ii)The information provided, and the period from the 17th of May to the commencement of voting on the 25th of May was a reasonable opportunity for employees to decide whether they want to approve the proposed termination.

  1. Following the conference of the 14th of June, the applicant submitted and provided additional information to the Commission attesting that:

(i)The vote was scheduled at a time which coincided with the maximum number of employees rostered to work, to maximise voting participation and convenience for employees;

(ii)The voting area was under constant CCTV monitoring, and this was known to all employees;

(iii)In the period since the 11 of November 2022, the employer has undertaken consultation with all employees, providing them with information on the effect of the proposed termination of the agreement on their terms and conditions of employment and the terms and conditions of employment that would apply should the agreement be terminated;

(iv)As part of these consultations the employer has informed all existing casual employees that their existing hourly rates (including penalty rates) will not be reduced when the enterprise agreement has been terminated.

  1. I have considered this further information and sought undertakings from the employer with reference to its commitments to existing casual employees.  These undertakings have been provided.

  1. On the basis of the above, I am satisfied that the requirements of s.220(2)(a) and 220(2)(b) are met.

The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)

  1. The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

  1. In the Form F24A Ms Peucker stated that voting commenced on 25 May 2023 and ended on 30 May 2023. 21 employees are covered by the Agreement, 15 employees cast a valid vote and 15 employees voted to approve the termination of the Agreement. The termination was agreed to on 30 May 2023.

  1. Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).

There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

  1. I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.

It is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement – s.223(d)

  1. As mentioned above, the Agreement is expressed to cover D.J. and M.A. Watts Pty Ltd. Aft the DJ and MA Watts Family Trust trading as the Big4 Melbourne Holiday Park Limited and its employees in the positions set out at clause 6 of the Agreement.[3] It does not cover any employee organisation.

Conclusion

  1. On the material contained in the declaration made by Ms Peucker filed with the application and the supplementary material provided, I am satisfied that D.J. and M.A. Watts Pty Ltd. Aft the DJ and MA Watts Family Trust trading as the Big4 Melbourne Holiday Park Limited has complied with the requirements in s.220(2) of the Act. The Application has been made in accordance with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.

  1. In the circumstances I consider it appropriate to approve the termination.

  1. The termination will operate from Thursday 22 June 2023.

  1. An order giving effect to this decision will be issued separately.

COMMISSIONER


[1] AE884239 at clause 3.

[2] Ibid at clause 6.

[3] Ibid at clause 6.

Printed by authority of the Commonwealth Government Printer

<AE884239  PR763373>

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