Experience Australia Group Pty Ltd T/A Skydeck Attractions
[2023] FWCA 1933
•29 JUNE 2023
| [2023] FWCA 1933 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Experience Australia Group Pty Ltd T/A Skydeck Attractions
(AG2023/1906)
| Industries not otherwise assigned | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 29 JUNE 2023 |
Application for termination of the Eureka Skydeck Employees’ Collective Agreement 2007.
The employer, Experience Australia Group Pty Ltd T/A Skydeck Attractions, has applied to terminate the Eureka Skydeck Employees’ Collective Agreement 2007 (Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), which provides for termination of an enterprise agreement by agreement between the employer and employees. A similar application was made by the employer, also by agreement with different relevant employees, for the Eureka 89 Employees’ Collective Agreement 2008[1]. The Agreement is a single-enterprise agreement.
The application was supported by a ‘Form F24A – declaration in support of termination of an enterprise agreement’, made by a Senior Human Resources Manager for the employer. Upon a request through chambers, I sought copies of documentation referred to in the declaration (which were provided to employees) and further information about the voting cohort, which included a number of casual employees. That additional information was provided by the employer and it provided further confirmation of the matters set out in the declaration.
The Agreement on its face was made in 2007 (although the actual date is unclear) as a collective agreement under the Workplace Relations Act 1996 (Cth). As there is some uncertainty as to the date the Agreement was made, there is also some uncertainty as to its nominal expiry date but I infer, based upon the 5 year period specified in the Agreement, it was in around 2012 or up to 2014 (noting that the expiry date of the agreement in the allied application by the employer was 14 May 2014). On any basis, it is a ‘WR Act instrument’ within the meaning of item 2(2) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), being a workplace agreement (item (2)(c)). By virtue of item 2(3) of Sch 3, it is a ‘transitional instrument’ under Sch 3. It is classified by item 2(5)(b) as an ‘agreement-based transitional instrument’ and, by item 2(5)(c)(i) of Sch 3, is also a ‘collective agreement-based transitional instrument’.
Following amendments to the Transitional Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), item 20A(1) of Sch 3 of the Transitional Act provides an agreement-based transitional instrument terminates at the end of the “grace period” for the instrument if the instrument has not already terminated before that time. The grace period is 7 December 2023, which is 12 months from the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).
In colloquial terms, the Agreement is now known as a ‘zombie agreement’ and will terminate automatically on 7 December 2023 unless extended.
By s 219 of the Act, an employer and its employees may “jointly agree” to terminate an enterprise agreement. A termination of an enterprise agreement by joint agreement has no effect unless approved by the Commission: s 219(2).
Section 220(1) provides that an employer may request employees to approve a proposed termination of an agreement by voting for it. By s 220(2), before making a request, an employer must:
“(a) take all reasonable steps to notify the 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 approve the proposed termination.”
By s 221(1), a termination is “agreed to” when a majority of the employees who cast a vote to approve the termination.
Sections 222 – 224 set out various requirements that must be met for approval of the termination, as well as when any termination comes into operation. They are 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.”
Based on the material in the application and supporting declaration, I am satisfied on the material provided to me that the employer took all reasonable steps to notify the employees of the matters required by s 220(2). The material refers to the method of vote being conducted electronically, with a link to be sent by email.
I am also satisfied that the employer requested its employees to approve the proposed termination of the Agreement and that the request was “agreed to” by a valid majority of the employees who cast a vote approving the termination. The termination was agreed to on 2 June 2023, upon the conclusion of approximately a 3 week voting period in total.
The application was made on 14 June 2023, which was within 14 days after the termination was agreed to. No further period of time was required: s 222(3).
On the material before me, including my further inquiries, I am satisfied there are no other reasonable grounds for believing that the employees have not agreed to the termination. The opposite appears to be the case.
While there were no employee organisations covered by the Agreement whose views needed to be taken into account under s 223(d), I am satisfied that it is appropriate to approve the termination.
I am therefore satisfied that each of the requirements of ss 220, 221, 222 are met. Further, as the requirements of s 223(a)-(d) are met, I must terminate the Agreement and, by this decision, now do so.
For the purposes of s 224, I specify the date the termination operates as 6 July 2023.
DEPUTY PRESIDENT
[1] Experience Australia Group Pty Ltd T/A Skydeck Attractions [2023] FWCA 1932.
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