Michaela Hanley, Clara McBlain, Chelsea Rushworth, Lucy Shopis

[2022] FWCA 4226

[2022] FWCA 4226

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

Michaela Hanley,  Clara McBlain,  Chelsea Rushworth,  Lucy Shopis

(AG2022/4624)

GRAVANIS NOMINEES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2006

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 8 DECEMBER 2022

Application for termination of the Gravanis Nominees Pty Ltd Employee Collective Agreement 2006

1. An application has been made to terminate the Gravanis Nominees Pty Ltd Employee Collective Agreement 2006 (the Agreement). That application was made pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act). It has been made by four individuals: Ms Hanley, Ms McBlain, Ms Rushworth and Ms Shopis (the Applicants).

1. Schedule 3, Item 16 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-base 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 2011.

1. The Applicants have each made a statutory declaration in support of their application, and it is noted that there are current employees of the employer.

1. On 14 November 2022, my Chambers sought the views of the employer, Oscars Hotels Pty Ltd (the Employer). On 17 November 2022 the Employer complied with that request, and filed submissions which I have considered in my decision. The Employer’s position in general, is that it does not oppose termination of the Agreement, but has requests in respect of the proposed termination date. Those reasons broadly refer to the administrative benefit for the Employer of a termination date that is on a Monday, and is a month from the date of this decision. Additionally, the Employer opposed the proposition that the Agreement contains specific inferior terms in comparison to the relevant award, but does not oppose termination on this basis.

1. On 21 November 2022, my Chambers sought the view of the Applicants in relation to the Employer’s response. The Applicants complied with this request and a submission was received from the United Workers Union on behalf of the Applicants on 25 November 2022. I have considered those submissions in my decision. Broadly, the Applicants rely on their statutory declaration in support of termination, and submit that termination would not be contrary to the public interest. In respect of the termination date request made by the Employer, the Applicants request, in general, that the date of termination be sooner due to the busy Christmas period in this industry, and noting that the Employer is currently paying penalty rates and casual loadings in compliance with the Award already. The Applicants request a termination date of 12 December 2022.

Consideration

1. It is not unusual for a respondent to seek a period of time within which to make appropriate administrative arrangements associated with agreement terminations, and a period of one month is a prompt period for such rearrangement. While the Applicants seek a termination date of 12 December 2022 due to the busy Christmas period in this industry, I note that the Employer is currently paying penalty rates and casual loadings in compliance with the Award, and that would mitigate any adverse effects of the continuation of the Agreement for a period of one month.

1. 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.

1. In consideration of the parties’ submissions on the matter, the termination will come into effect on 2 January 2023.

DEPUTY PRESIDENT

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