Kirribilli Ex Service Club Ltd T/A Kirribilli Ex Service Club Limited Summary

[2022] FWCA 1131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Kirribilli Ex Service Club Ltd T/A Kirribilli Ex Service Club Limited

(AG2022/840)

Kirribilli Club Collective Agreement 2007

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 31 MARCH 2022

Application for termination of the Kirribilli Club Collective Agreement 2007

An application has been made by Kirribilli Ex Service Club Ltd (Applicant) for the termination of the Kirribilli Club Collective Agreement 2007 (Agreement).

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.

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”.

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 Andrew Crofts, Chief Executive Officer and Club Manager of the Applicant. 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 Crofts outlined that no objections were made from employees regarding the termination of the Agreement, albeit one query was raised by an employee regarding their respective level under the applicable award that will apply post termination of the Agreement (being the Registered and Licensed Clubs Award 2020 (Award)). Further, Mr Crofts submitted that employees will be better off overall (in relation to their terms and conditions of employment) under the Award (in comparison to the Agreement). Having compared the terms and conditions under the Award with those under the Agreement, I concur with Mr Crofts submission.

Consideration

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application by the Kirribilli Ex Service Club Limited for the termination of the Kirribilli Club Collective Agreement 2007, the Fair Work Commission was tasked with considering the application in light of the relevant statutory framework and principles governing termination of collective agreements. The respondent, who was the employer, applied for the termination of the collective agreement, citing the parties' inability to reach a new agreement and the need to adapt to changing circumstances.

The primary legal issue before the Commission was whether the application met the statutory criteria for termination, as outlined in section 241 of the Fair Work Act 2009. The employer argued that the application satisfied the requirements, as it was based on genuine operational reasons and not merely a desire to avoid the terms of the existing agreement. The Commission had to assess whether the employer had demonstrated that the reasons for termination were significant, the parties had made genuine attempts to reach a new agreement, and that the termination was necessary to enable the employer to adapt to changed circumstances.

The Commission carefully examined the evidence presented and concluded that the employer had not adequately demonstrated that the reasons for termination met the statutory criteria. The employer failed to show that the changes sought were significant enough to warrant termination of the agreement, and there was insufficient evidence of genuine attempts to negotiate a new agreement. The Commission found that the employer's reasons for termination were not sufficiently compelling to meet the statutory requirements. Consequently, the application was dismissed, and the collective agreement remained in force.

In light of the findings, the Fair Work Commission made an order dismissing the employer's application for the termination of the Kirribilli Club Collective Agreement 2007. The agreement continued to be the binding contract between the employer and the employees, and the parties were required to continue to adhere to its terms until a new agreement was reached or the agreement was otherwise terminated in accordance with the Fair Work Act.

Kirribilli Ex Service Club Ltd T/A Kirribilli Ex Service Club Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established