Kiama Golf Club Limited

[2019] FWCA 5482

[2019] FWCA 5482

The attached document wholly replaces the document previously issued with the code [2019] FWC 4541 on 7 August 2019 to correct document referencing.

Associate to Deputy President Sams

Dated 7 August 2019

[2019] FWCA 5482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 222 – Enterprise agreement

Kiama Golf Club Limited
(AG2019/2130)

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 7 AUGUST 2019

Application for termination of the Kiama Golf Club Limited Employee Collective Agreement 2010 - 2013.

[1] This is an application by Kiama Golf Club Limited (the ‘Club’) pursuant to s 222 of the Fair Work Act 2009 (the ‘Act’), which seeks to terminate the Kiama Golf Club Limited Employee Collective Agreement 2010 – 2013 [AE881282] (the ‘Agreement’).

[2] The relevant provisions of the Act governing applications of this kind are set out at ss 220-224 as follows:

‘220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the 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.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

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.’

[3] In a Statutory Declaration in support of the termination of the Agreement (Form F24A), Mr D Rootham, General Manager, set out the steps taken by the Club to ensure the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination as follows:

‘All staff were advised by email one week prior to the meeting that the purpose of the meeting was to discuss the possibility of transitioning to the Registered and Licensed Clubs Award 2010 (the ‘Award’) it had originally been put in place. Additionally, a copy of the voting slip was included in the email so that employees were aware of what to expect during the vote. The last sentence of the email advised that staff were able to ask questions prior to the meeting.

At the meeting, the following occurred:

•  Staff were given handouts explaining the benefits and detriments of terminating the Kiama Golf Club Limited Employee Collective Agreement 2010-2013 ‘(Collective Agreement)’;

•  They were also provided copies of the Award and Collective Agreement which staff could refer to;

•  After an explanation of the Club’s reasoning and purpose for terminating the Collective Agreement, a Q & A session;

•  Copies of the Award and the Collective Agreement were emailed to staff on request following the meeting; and

•  Staff were informed of the time, place and method of voting which was to take place at the Club by secret ballot

All staff unable to attend this session were personally spoken to and advised of all the information issued and discussed at the staff meeting, with their questions and concerns addressed by the General Manager.

Voting was conducted between 3 June 2019 to 10 June 2019, to allow staff sufficient time to go over the information, discuss it and pose any concerns or questions. Given staff worked varied hours, it was expected that a week would ensure that all staff would be given the opportunity to vote.

Each staff member initialled a form that they had submitted a vote. The ballot box also remained locked for the entire seven day voting period and the final votes were counted and recorded by three staff members.’

[4] I am satisfied that the applicant gave the employees covered by the Agreement a reasonable opportunity to consider whether they supported the termination of the Agreement (s 220(2)). In a secret ballot, 31 of the 33 employees who cast a valid vote agreed to terminate the Agreement, satisfying s 221(1) of the Act. For the sake of completeness, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination of the Agreement (s 223(c)).

[5] In a telephone conference of the application on 9 July 2019, Ms N Hoang of the Registered Clubs Association of NSW appeared for the applicant. Ms Hoang said that the Agreement was outdated, in that it was nine years old, and the Club intended it to be a transitional instrument between the NAPSA and the Award. Additionally, a number of the terms were applicable at the time of the making of the Agreement, but are not an adequate representation of the Club today. Further, the classification structure aligns with the NAPSA and not the Award, creating difficulty in correctly classifying employees. Finally, the overarching purpose of the Club to terminate the Agreement was to have a more simplified instrument (i.e. the Award) so that all involved parties could better understand and interpret the instrument.

[6] Having reviewed the materials, including the handout provided to employees at the meeting of 27 May 2019, the views of the employees as expressed in the vote and the views of the applicant, I am satisfied that all of the requirements of the Act, in particular ss 220, 221, 222 and 223, have been met. Accordingly, the Kiama Golf Club Limited Employee Collective Agreement 2010 – 2013 will be terminated. During the conference of 9 July 2019, I indicated my intention to approve the termination of the Agreement. Pursuant to s 224 of the Act, noting that my decision took effect from that day, and by consent, the termination is to take effect from 9 July 2019. An order to that effect will accompany the publication of this decision.

DEPUTY PRESIDENT

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