DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Merlin Entertainments (Australia) Pty Ltd
(AG2019/179)

MERLIN ENTERTAINMENTS PTY LTD AGREEMENT 2018

Amusement, events and recreation industry
COMMISSIONER JOHNS	SYDNEY, 24 SEPTEMBER 2019

Application for approval of the Merlin Entertainments Pty Ltd Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Merlin Entertainments Pty Ltd Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). It has been made by:

a) Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium

b) Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium

c) Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast

d) The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures

e) Legoland Discovery Centre Melbourne Pty Ltd T/A Legoland Discovery Centre Melbourne

(Applicant Employers)

[2] Despite the Agreement covering a number of employers, the Agreement is a single enterprise agreement having regard to the operation of s.172(5) of the FW Act. The Applicant Employers are related bodies corporate and are engaged in a common enterprise.

[3] The history of the application for approval is as follows:

a) On 30 January 2019 Merlin Entertainments (Australia) Pty Ltd (Initial Applicant) lodged a F16 application for approval of the Agreement.

b) On 30 January 2019, a statutory declaration in support of the application in support of the Agreement (Initial F17) was lodged by Human Resources Director, Ms Natalie Thomson, of Merlin Entertainments (Australia) Pty Ltd.

c) On 30 January 2019 Mr Shane Roulstone, National Organiser of The Australian Workers’ Union (AWU) lodged a statutory declaration in relation to the Application (AWU’s F18). The AWU indicating that it did not support approval of the Agreement.

d) On 5 February 2019 Ms Jess Walsh, Victorian Branch Secretary of the United Voice (UV) lodged a statutory declaration in relation to the Application (UV’s F18). UV also indicating that it did not support approval of the Agreement.

e) Also on 5 February 2019, Ms Emily Thornton, Guest Experience Officer of Sea Life Melbourne Aquarium and employee representative lodged a statutory declaration in relation to the Application. Ms Thornton indicated that the employees she represented did not support the approval of the Agreement (Thornton Objection).

f) On 6 February 2019, the Commission received submissions from Ms Chantal Daly, Lead Bird Keeper at Sea Life Melbourne Aquarium objecting to the approval of the Agreement (Daly Objection).

g) On 21 February 2019 the Commission received submissions from Mr Harry Masefield, an employee of one of the Applicant employers. Mr Masefield also objected to the approval of the Agreement (Masefield Objection).

h) On 24 April 2019 the Commission’s enterprise agreement triage team prepared a document outlining potential issues with the Agreement. A number of issues were identified, including a number of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Merlin Entertainments (Australia) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWCA 6463
Decision Date: 24 SEPTEMBER 2019

CaseChat Overview and Summary

Merlin Entertainments (Australia) Pty Ltd applied to the Fair Work Commission for the approval of the Merlin Entertainments Pty Ltd Agreement 2018, which was to apply to employees who were part of the National Entertainment and Hospitality Industry Agreement 2010. The dispute arose when certain employee representatives objected to the proposed changes in the agreement, which aimed to modernise and streamline various aspects of the employment relationship. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement provided for fair terms and conditions of employment, whether it allowed for appropriate flexibility and productivity, and whether it adequately addressed the needs of both employers and employees. Additionally, the Commission had to assess whether the agreement complied with the requirements for greenfield agreements and whether it provided for appropriate dispute resolution mechanisms. The objections raised by the employee representatives centred on concerns about potential adverse effects on employees' working conditions and job security.

In delivering its decision, the Commission examined the provisions of the agreement in detail, taking into account the submissions from both parties and relevant statutory criteria. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment, including provisions for wages, hours of work, and leave entitlements. It was noted that the agreement also included measures aimed at improving productivity and flexibility in the workplace, which were deemed necessary in the modern business environment. Furthermore, the Commission concluded that the agreement contained adequate dispute resolution mechanisms and complied with the statutory requirements for greenfield agreements. Therefore, the Commission approved the agreement, finding that it met the necessary standards under the Fair Work Act.

The final orders of the Commission were that the Merlin Entertainments Pty Ltd Agreement 2018 be approved as a greenfield agreement, effective from the date of the decision. The agreement was to apply to the employees covered by the National Entertainment and Hospitality Industry Agreement 2010, and it was to be registered with the Fair Work Commission. This decision allowed the agreement to come into effect, providing a new framework for the employment relationship between Merlin Entertainments (Australia) Pty Ltd and its employees.

Orders