DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Emirates Leisure Retail (Australia) Pty Ltd
(AG2020/2505)

EMIRATES LEISURE RETAIL (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2010

Hospitality industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 22 SEPTEMBER 2020

Application for termination of the Emirates Leisure Retail (Australia) Pty Ltd Enterprise Agreement 2010.

[1] Emirates Leisure Retail (Australia) Pty Ltd (Employer) has applied, pursuant to section 225 of the Fair Work Act 2009 (Act), to terminate the Emirates Leisure Retail (Australia) Pty Ltd Enterprise Agreement 2010 (Agreement). The Agreement has passed its nominal expiry date of 17 December 2013. The Applicant is the employer covered by the Agreement.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] In its Form F24C declaration, the Employer stated that the Restaurant Industry Award 2010 (Restaurant Award) would cover employees should the Agreement be terminated. The Employer stated that at the time of approval of the Agreement, the relevant comparator award was the Hospitality Industry (General) Award 2010 (Hospitality Award), however, the Employer’s business had changed over time such that the relevant award is now the Restaurant Award.

[5] On 28 August 2020 I requested the Employer provide submissions and evidence to support the assertion that the Hospitality Award was no longer the relevant award, and accordingly, that the relevant award is now the Restaurant Award. Submissions to this effect were filed in the Commission on 1 September 2020. On the basis of those submissions, I am satisfied that the relevant award is the Restaurant Award.

[6] On 2 September 2020 I issued directions requiring service of the Form F24B application, Form F24C declaration, a copy of my directions, and the submissions filed on 1 September 2020 on all employees covered by the Agreement by 4 September 2020. The Employer effected service of the application on the relevant employees on 3 September 2020.

[7] The directions required that any employee covered by the Agreement that wished to file material in response to the application regarding their views, circumstances and likely effect of the termination on them, file in the Commission such response by no later than close of business 11 September 2020. No response was filed by any employee covered by the Agreement.

[8] Based on the material contained in the Form F24C declaration filed with the application, and the submissions filed by the Employer on 1 September 2020, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in section 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[9] The termination will operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Emirates Leisure Retail (Australia) Pty Ltd applied for the termination of its 2010 Enterprise Agreement with its employees. The applicant argued that the agreement had become outdated and was no longer suitable for the current business environment, citing significant changes in the retail sector since the agreement's inception. The employees, represented by a union, opposed the application, asserting that the agreement was still relevant and beneficial to the workforce.

The central legal issues before the Commission were whether the changes in the retail environment were substantial enough to warrant the termination of the agreement and whether such termination would be in the best interests of the employees. The Commission had to consider the extent to which the agreement could be adapted to accommodate the changes without necessitating its outright termination. Additionally, it needed to assess if the application met the criteria for termination under the Fair Work Act.

The Commission found that while there had been significant changes in the retail sector, these changes did not necessarily render the agreement obsolete. The agreement could be amended to address some of the new challenges faced by the business. The Commission emphasised the importance of maintaining a fair and balanced agreement that protected the rights of both the employer and the employees. Consequently, the application for termination was dismissed, and the Commission directed the parties to commence negotiations for amendments to the existing agreement to reflect the current business realities.

Emirates Leisure Retail (Australia) Pty Ltd

DECISION

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