Kitsea Pty Ltd T/A Great Lakes Holiday Park

[2022] FWCA 1932 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Kitsea Pty Ltd T/A Great Lakes Holiday Park

(AG2022/1530)

GREAT LAKES CARAVAN PARK (STAFF) EMPLOYEE COLLECTIVE AGREEMENT

Hospitality industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 14 JUNE 2022

Application for termination of the Great Lakes Caravan Park (Staff) Employee Collective Agreement

Kitsea Pty Ltd (Kitsea) is covered by the Great Lakes Caravan Park (Staff) Employee Collective Agreement (Agreement) and has made an application to terminate the Agreement pursuant to s 225 of the Fair Work Act2009 (Cth) (Act). The nominal expiry date of the Agreement was 29 May 2011.

The Agreement is a collective agreement-based transitional instrument within the meaning of item 2(5) of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act). By reason of item 16 of schedule 3 of the Transitional Act, subdivision D of division 7 of part 2-4 of the Act applies to the Agreement as if reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument such as the Agreement.

There are no employee organisations covered by the Agreement.

There are employees covered by the Agreement.

I gave the employees covered by the Agreement an opportunity to be heard in relation to the application by Kitsea to terminate the Agreement. No negative comments or submissions were pressed by any of the employees covered by the Agreement.

I am satisfied on the basis of the material provided to the Fair Work Commission (Commission) that the Agreement is no longer suitable for Kitsea’s business or the employees who work in it. For example, the Agreement only provides for casual employment; it provides for a flat rate of pay; and it does not include provisions for higher payment for work on weekends or at potentially inconvenient times of the day. In my view, the Hospitality Industry (General) Award 2020 is a more suitable industrial instrument.

Having regard to the information provided to the Commission in support of the application for termination of the Agreement, I am satisfied that:[1]

termination of the Agreement is not contrary to the public interest; and

it is appropriate to terminate the Agreement taking account all the circumstances including:

the views of the employees covered by the Agreement and Kitsea; and

the circumstances of those employees and Kitsea including the likely effect that the termination will have on each of them.

Accordingly, I terminate the Agreement with effect from midnight on Friday, 17 June 2022. An order [PR742607] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

[1] Section 226 of the Fair Work Act 2009 (Cth)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Kitsea Pty Ltd, trading as Great Lakes Holiday Park, applied for the termination of the Great Lakes Caravan Park (Staff) Employee Collective Agreement. The application was made under section 243A of the Fair Work Act 2009, which allows for the termination of an enterprise agreement if certain criteria are met. The dispute arose from the company's contention that the agreement no longer met the requirements for certification and registration due to changes in the nature of the business and workforce. The legal issues before the Commission involved determining whether the enterprise agreement had become redundant or irrelevant and if the application met the statutory criteria for termination.

The Fair Work Commission considered whether the changes in the business and workforce had rendered the agreement irrelevant or redundant. The Commission examined the nature of the changes and whether they were significant enough to warrant the termination of the agreement. The company argued that the changes in the workforce composition and the introduction of new operational practices had made the existing agreement outdated. The Commission also assessed whether the agreement could be amended to accommodate the changes, rather than terminating it entirely. The reasoning of the Commission was based on the statutory provisions of the Fair Work Act, focusing on the criteria for termination and the necessity of the changes to the business operations.

The Commission concluded that the application for termination was successful, as the changes in the business and workforce had rendered the existing agreement irrelevant. The changes were significant and could not be addressed through amendments to the agreement. The Commission found that the application met the statutory criteria for termination, and therefore, the Great Lakes Caravan Park (Staff) Employee Collective Agreement was terminated. The decision was based on the evidence provided by the company regarding the nature of the changes and the impact on the workforce and business operations. The Commission emphasised the importance of enterprise agreements remaining relevant to the current circumstances of the business and workforce.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established