DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Frank Davies Investments Pty Ltd ATF F Davies Family Trust T/A Big4 Beachlands Holiday Park
(AG2021/6321)

BEACHLANDS CORPORATION PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Hospitality industry
COMMISSIONER HUNT	BRISBANE, 24 AUGUST 2021

Application for termination of the Beachlands Corporation Pty Ltd Employee Collective Agreement 2009.

[1] On 21 July 2021, Frank Davies Investments Pty Ltd ATF F Davies Family Trust T/A Big4 Beachlands Holiday Park (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to the Fair Work Commission (the Commission) to terminate the Beachlands Corporation Pty Ltd Employee Collective Agreement 2009 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a Form F24C statutory declaration of Ms Morgan Copley, HR Manager, which declared, amongst other things, that the termination of the Agreement would result in employees covered by the Agreement being paid pursuant to the terms within the Hospitality Industry (General) Award 2020 (the Award).

[3] The Employer submitted that terminating the Agreement will result in employees receiving weekend and public holiday penalty rates pursuant to the Award, not appropriately contained within the Agreement. Having employees appropriately rewarded for weekend and public holiday work will improve the service provided to clients and will be in the interests of employees.

[4] I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 11 August 2021, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 20 August 2021.

Legislative provisions

[5] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[6] Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Conclusion

[7] Based on the material contained in the statutory declaration of Ms Copley, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[9] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] Per s.227 if an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement. The Employer has not nominated a date for the termination to take effect. I consider it reasonable for the termination to take effect from today.

[11] The termination will take effect from 24 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent matter of Frank Davies Investments Pty Ltd ATF F Davies Family Trust T/A Big4 Beachlands Holiday Park, the Fair Work Commission was tasked with considering an application for the termination of the Beachlands Corporation Pty Ltd Employee Collective Agreement 2009. The application was brought forth by the employer, Frank Davies Investments, seeking to terminate the existing collective agreement on the grounds that the workplace was no longer covered by the agreement due to significant changes in the business operations. The respondents, the employees and their representatives, contested the application, arguing that the changes did not warrant termination of the collective agreement.

The primary legal issue the Commission had to resolve was whether the alterations to the business operations of the Beachlands Holiday Park were substantial enough to constitute a cessation of the workplace within the meaning of the Fair Work Act 2009. This required a careful examination of the nature and extent of the changes, as well as the impact of those changes on the employees and the operation of the collective agreement. Additionally, the Commission had to consider whether the changes were such that they would render the continuation of the collective agreement unworkable or impractical.

In deliberating on the matter, the Commission evaluated the evidence provided by both parties regarding the changes to the business operations and their implications. The Commission found that the significant reduction in workforce and the cessation of certain business activities did indeed amount to a cessation of the workplace as defined by the Act. The Commission concluded that the changes were substantial and that the continuation of the collective agreement was no longer practical. Therefore, the application for termination was upheld. The decision was grounded in the principle that a collective agreement should remain relevant and effective in the context of the workplace it was designed to cover.

As a result of the decision, the Beachlands Corporation Pty Ltd Employee Collective Agreement 2009 was terminated. This outcome effectively means that the employees are no longer bound by the terms of the agreement, and any disputes or grievances that were previously governed by the agreement must now be addressed in accordance with the general provisions of the Fair Work Act 2009 and any applicable awards or enterprise agreements.

Frank Davies Investments Pty Ltd ATF F Davies Family Trust T/A Big4 Beachlands Holiday Park

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established