Jackson, Neroli

[2021] FWCA 1932

[2021] FWCA 1932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jackson, Neroli
(AG2020/3455)

SUNSHINE COAST HOTELS PTY LTD ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT LAKE	BRISBANE, 9 APRIL 2021

Application for termination of the Sunshine Coast Hotels Pty Ltd Enterprise Agreement 2013 – application granted – agreement terminated.

[1] An application pursuant to s 225 of the Fair Work Act 2009 (the Act) was made by Neroli Jackson (the Applicant) to terminate the Sunshine Coast Hotels Pty Ltd Enterprise Agreement 2013 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 20 June 2015.

[3] Sections 225 and 226 of the Act provide:

“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;

(c) an employee organisation 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.”

[4] After correspondence with the parties through my Chambers, the employer indicated that they had no objection to termination of the enterprise agreement. Despite this, I am required to be satisfied of the statutory criteria above and so on 9 March 2021 the following email was sent:

Dear parties

Given that there is no objection to termination, the Deputy President is minded to terminate the agreement. Prior to being able to exercise the power to terminate the agreement the Deputy President must be satisfied that the criteria under s 226 of the Fair Work Act 2009 are satisfied. To provide this information, the Respondent is to produce a signed statutory declaration indicating that:

● There has been discussion with employees and that they are in favour of termination;

● The circumstances for employees under the industrial instrument are improved (with any modelling that may have been done to indicate that); and

● Termination of the agreement would be in the public interest.

[5] In response, a statutory declaration was received from Scott Armstrong which satisfied these criteria.

[6] I am satisfied that termination of the Agreement is not contrary to the public interest as termination of the Agreement would result in employees being covered by a modern award and the NES, thus achieving the object of the Act of providing a guaranteed safety net of fair, relevant, and enforceable minimum terms and conditions of employment. Evidence was given that the staff would be equal or better off and this weighed as a benefit in my consideration.

[7] I was not made aware of anything that may indicate it would be contrary to the public interest to terminate the Agreement.

[8] At the date of this Decision, no employees covered by the Agreement have objected to the termination of the Agreement.

[9] Taking into account the information provided in response to the matters in s 226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the agreement on the basis that the material satisfies the legislative requirements that the termination of the Agreement is appropriate. I am satisfied it is not contrary to the public interest to terminate the Agreement.

[10] The application is therefore granted and the Agreement is terminated. Termination of the Agreement will take effect from 3 May 2021.

[11] I order accordingly.

DEPUTY PRESIDENT

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