Ettalong Memorial Bowling Club Ltd T/A Ettalong Bowling Club

[2022] FWCA 1081

[2022] FWCA 1081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Ettalong Memorial Bowling Club Ltd T/A Ettalong Bowling Club

(AG2022/795)

Ettalong Memorial Bowling Club’s Enterprise Agreement 2017

Licensed and registered clubs
DEPUTY PRESIDENT BOYCE	SYDNEY, 28 MARCH 2022

Application for termination of the Ettalong Memorial Bowling Club’s Enterprise Agreement 2017

1. An application has been made by Ettalong Memorial Bowling Club Ltd (Applicant) for the termination of the Ettalong Memorial Bowling Club’s Enterprise Agreement 2017 (Agreement/ EBA).

1. The application is made under s.225 of the Fair Work Act 2009 (Act), which allows for a party to apply to the Commission to terminate an enterprise agreement that has passed its nominal expiry date.

1. Relevantly, s.226 of the Act reads:

“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”.

1. The Applicant employer has provided, in support of its termination application, a statutory declaration and Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date from Mr Tim McGavin, CEO Ettalong Bowling Club. The statutory declaration included an explanation of the steps taken by the Applicant to consult with employees regarding the potential termination of the Agreement. Mr McGavin outlined that the Applicant had expressed an intention to honour rates above the Registered and Licensed Clubs Award 2020 (the Award) until the Award rates caught up to the rates of pay provided for in the Agreement.

1. Mr McGavin submitted in the Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date that the conditions in the Award are more favourable than the Agreement, particularly in relation to shift penalties and breaks. Further Mr McGavin conceded that employees would financially be better off working under the conditions of the Award rather than the Agreement.

Consideration

1. I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account the views of the Applicant, and its relevant employees, I do consider in the circumstances here that it is appropriate to terminate the Agreement. Accordingly, the Agreement is terminated and pursuant to s.227 of the Act, the termination takes effect on and from the date of this decision.

DEPUTY PRESIDENT

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