Mount Osmond Golf Club Incorporated

[2022] FWCA 3952

[2022] FWCA 3952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

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

Mount Osmond Golf Club Incorporated

(AG2022/4494)

Mount osmond golf club groundstaff enterprise Agreement

Sporting organisations
DEPUTY PRESIDENT HAMPTON	ADELAIDE, 10 November 2022

Application for termination of the Mount Osmond Golf Club Groundstaff Enterprise Agreement

1. This decision concerns an application by Mount Osmond Golf Club Incorporated (the Applicant or Mount Osmond Golf Club), in effect, under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Mount Osmond Golf Club Groundstaff Enterprise Agreement (the Collective Agreement). The Collective Agreement was originally approved by the Industrial Relations Commission of South Australia on 16 February 2005 under the Industrial and Employee Relations Act 1994 (SA). In 2008, the Collective Agreement became a Preserved Collective State Agreement under Schedule 8 of the Workplace Relations Act 1996 (Cth). In 2009, the Collective Agreement became a Preserved State Agreement because of Schedule 3 Items (2)(e) and 14 of the Fair Work (Transitional Provisional and Consequential Amendment) Act 2009 (the Transitional Act).

1. There is no employee organisation covered by the instrument. The Collective Agreement had a nominal expiry life of 24 months from the date of approval.

1. The Collective Agreement presently covers staff undertaking grounds maintenance, greenkeeping and similar roles employed by the Mount Osmond Golf Club.

1. A hearing by MS Teams was conducted in this matter on 10 November 2022. At the conclusion of that hearing, I expressed my intention to terminate the Collective Agreement and indicated that I would subsequently provide a written decision.

1. The Collective Agreement is a collective agreement-based transitional instrument[1] for the purposes of the Transitional Act. This means, in effect, that the Collective Agreement remained in force under the terms of the FW Act, subject to certain overriding provisions including the National Employment Standards (NES) and the minimum base rates provided by any modern award covering the parties. In this case, the Registered and Licensed Clubs Award 2020[2] (Clubs Award) covers the parties although it does not presently apply to them due to the continued operation of the Collective Agreement.[3]

1. Item 16 of Schedule 3 of the Transitional Act provides that an agreement of this kind may be terminated by the Commission under Part 2-4 of the FW Act.

1. Subdivision D of Division 7 of Part 2-4 of the FW Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)       one or more of the employers covered by the agreement;
(b)       an employee covered by the agreement;
(c)       an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

1. The application was accompanied by a statutory declaration of Mr Andrew Gay, Interim General Manager of the Applicant, relevantly setting out the grounds for the application to terminate the Collective Agreement. Those grounds included contentions to the effect of the following:

·The Collective Agreement is outdated, and its terms are deficient in comparison with those provided by the Clubs Award; and

·The employees concerned have been extensively consulted and have strongly supported the termination of the Collective Agreement. Direct evidence of this process and the views of the employees accompanied the declaration.

1. Given the status of the Collective Agreement, the Mount Osmond Golf Club is entitled to apply for its termination pursuant to s.225 of the FW Act.

1. In the lead up to the hearing of this matter, an opportunity was provided for any of the employees involved to participate in the hearing or otherwise confirm any concerns with the proposed termination. The Commission did not receive advice from any employee (or employee representative) covered by the Collective Agreement expressing concerns or otherwise wishing to be heard in relation to the application. Given this fact, and the evidence provided by Mr Gay, I am satisfied that the employees support the application.

1. The statutory environment in which the Collective Agreement now operates is significantly different to that in which it was approved. The present instrument is very outdated and many of its operative terms have been overtaken by the NES and the modern award base rates that must be applied as a minimum. The continued operation of the Collective Agreement also prevents the full legal application of the Clubs Award.

1. I have also been advised that given the advent of the Clubs Award, the Mount Osmond Golf Club has administratively adjusted the penalty rates in the Collective Agreement since the nominal expiry. Further it has also continued to adjust the wage rates and provides wages that are significantly over the modern award base rates. I have also been informed that the Club intends to maintain those rates notwithstanding the termination of the Collective Agreement.

1. Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Collective Agreement. I am also satisfied that it is appropriate in all of the circumstances, including having regard to the views of the relevant parties, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Collective Agreement.

1. The Collective Agreement is terminated, and the termination will take effect on and from 11:59 pm on 10 November 2022.

1. A copy of this Decision should be provided to each of the employees involved.

DEPUTY PRESIDENT

[1] Item 2(2)(e) of Schedule 3 of the Transitional Act.

[2] MA000038

[3] s.47 and s.48 of the FW Act.

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