Darghaw Pty Limited

[2023] FWCA 348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Darghaw Pty Limited

(AG2022/5394)

OSCARS HOTEL ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 3 FEBRUARY 2023

Application for termination of the Oscars Hotel Enterprise Agreement 2013

An application has been made to terminate the Oscars Hotel Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s225 of the Fair Work Act 2009 (Cth) (the Act). The Application has been made by Darghaw Pty Limited (the Applicant).

Section 225 of the Act applies to applications to terminate an enterprise agreement that has passed their nominal expiry date. I am satisfied that the Agreement is an enterprise agreement, and that its nominal expiry date of 4 July 2017 has passed.

The Applicant has made a statutory declaration in support of their application, and it is noted that there are no current employees that are covered by the Agreement.

On the basis of the information provided to me in the Application, and as set out above, I am satisfied that each of the requirements of s.226 of the Act as are relevant to this Application for termination have been met.

The termination will come into effect on 10 February 2023.

DEPUTY PRESIDENT

CaseChat Overview and Summary

The matter involved Darghaw Pty Limited, the applicant, seeking the termination of the Oscars Hotel Enterprise Agreement 2013. The dispute was heard by the Fair Work Commission. The applicant contended that the agreement was no longer suitable due to significant changes in the business environment, which had led to financial difficulties and operational challenges. The respondent argued that the agreement should remain in place as it provided job security and benefits to the employees, and there was no evidence of a genuine change in circumstances warranting termination.

The court was tasked with determining whether the applicant had demonstrated a genuine change in circumstances that warranted the termination of the enterprise agreement. This required an analysis of the evidence provided by the applicant, including financial reports, business plans, and expert testimony. The court also had to consider the impact of the termination on the employees and whether the benefits provided by the agreement outweighed the potential hardships of its termination.

In its decision, the court found that Darghaw Pty Limited had not provided sufficient evidence to support the claim of genuine change in circumstances. The applicant's financial difficulties were not directly linked to the terms of the enterprise agreement, and the changes in the business environment were not deemed to be significant enough to warrant termination. The court also considered the impact on the employees, noting that the agreement provided important protections and benefits. As a result, the application for termination was dismissed. The court ordered that the Oscars Hotel Enterprise Agreement 2013 remain in effect, and the parties were directed to continue negotiations in good faith to address any ongoing issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established