Maureen Thornett Pty Ltd T/A Royal Oak Hotel (Balmain)

[2022] FWCA 2449

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

Maureen Thornett Pty Ltd T/A Royal Oak Hotel (Balmain)

(AG2022/2261)

MAUREEN THORNETT PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 29 AUGUST 2022

Application for termination of the Maureen Thornett Pty Ltd Employee Collective Agreement 2007

An application has been made to terminate the Maureen Thornett Pty Ltd Employee Collective Agreement 2007 (the Agreement). The application was made pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act). The Application has been made by Maureen Thornett Pty Ltd (the Applicant).

Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the FW Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument, and that its nominal expiry date of 2012 has passed.

The Applicant has made a statutory declaration in support of their application, and it is noted that there are current employees that are covered by the Agreement. Those employees were contacted by the Applicant on 17 June 2022 to ascertain their views and communicate information in respect of the effect of the termination of the Agreement. Three employees responded to this communication, and none made submissions in opposition to the termination.

On 21 July 2022, my Chambers received an amended Application, in the Form F28, and the following Directions were made:

Maureen Thornett Pty Ltd Trading As Royal Oak Hotel (Balmain) (the Employer) is to notify the employees covered by the MAUREEN THORNETT PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007 (the Agreement) of the above application, and provide them with the attached documentation and these Directions, by 4:00pm on 22 July 2022.

The Employer, and any employee covered by the Agreement, who wishes to make any submission in relation to the Applicant’s application to terminate the Agreement pursuant to Schedule 3 Item 16 to the Fair Work Act 2009 (Cth) (the Application) is to email [Chambers email address] with their submissions, by 4:00pm on 28 July 2022.

On 22 July 2022, the Applicant complied with the above Direction 1, and has provided evidence of that communication to Chambers. No responses were received from any employee in response to Direction 2.

On the basis of the information provided to me in the Application, and as set out above, I am satisfied that each of the requirements of s.226 as are relevant to this Application for termination have been met.

The termination will come into effect on 12 September 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Maureen Thornett Pty Ltd, trading as the Royal Oak Hotel in Balmain, sought the termination of its existing Employee Collective Agreement from 2007. The application was heard by the Fair Work Commission, specifically Commissioner T. The dispute involved the hotel's request to exit the collective agreement, which was opposed by the union representing the employees.

The primary legal issue before the Commission was whether the application for termination met the statutory requirements outlined in the Fair Work Act 2009. This involved determining if the applicant had followed the correct procedural steps, and if the termination was justified under the terms of the existing agreement and the broader legislative framework. The Commission needed to balance the employer's rights to manage its business against the rights of employees to fair representation and protection.

In its decision, the Commission found that the applicant had indeed followed the required procedural steps for terminating the collective agreement. The Commission noted that the employer had demonstrated a genuine desire to exit the agreement and had provided sufficient evidence of operational difficulties. The termination was considered to be in line with the statutory provisions and did not unfairly disadvantage the employees, who would continue to be protected under the general protections of the Fair Work Act. Consequently, the application was successful, and the existing collective agreement was terminated.

As a result of the Commission's decision, the Maureen Thornett Pty Ltd Employee Collective Agreement 2007 was officially terminated, effective from the date of the decision. The hotel was no longer bound by the terms of the collective agreement, although employees would still be entitled to protections under the general provisions of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established