DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mr Brian O'Neill; Mr Dale Peardon
(AG2018/651)

A.T HOTELS (BUNDABERG) PTY LTD ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 17 APRIL 2018

Application for termination of the A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013.

[1] On 26 February 2018, Mr Brian O’Neill and Mr Dale Peardon (the Applicants) made an application to the Fair Work Commission (the Commission) to terminate the A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act). The Applicants are employees covered by the Agreement. The Employer is named on the application as Sugerland Hotel Pty Ltd T/A Sugarland Tavern Bundaberg (the Employer).

[2] The Form 24B application states that there are no employee organisations covered by the Agreement, however the Applicants were represented by Mr Dermot Peverill of United Voice.

[3] The application was originally allocated to Senior Deputy President Hamberger who issued directions instructing the Employer to provide a copy to all employees covered by the Agreement, and requesting any party who opposed the application to contact his Chambers advising so.

[4] The Employer sent correspondence to the Commission advising it consented to the application. Four employees sent correspondence advising they opposed the application, and the matter was subsequently allocated to me.

[5] A notice of listing was issued listing the application for Directions Hearing/ Conference on 11 April 2018.

[6] On 7 April 2018, my chambers received correspondence from the Employer stating that an all of staff meeting had been held on 4 April 2018, which was also attended by Mr Joe Irvin, Director of the Employer and the representative for the Employer Ms Joanna Minchinton of the Queensland Hotels Association. The correspondence stated that the employees were afforded an opportunity to ask further questions regarding the application, the termination process and the conditions of the Hospitality Industry (General) Award 2010 as compared to the Agreement.

[7] Subsequent to this meeting, all four employees who had indicated their opposition to the application, sent correspondence to my chambers withdrawing their objections. I am satisfied that there is no objection to the application from the employees covered by the Agreement.

[8] At the Directions Hearing/conference on 11 April 2018, the Employer and the Applicants (represented by United Voice) confirmed consent for the Agreement to be terminated at 2.00am Thursday 26 April 2018. The date and time of the termination aligns with pay and roster cycles.

[9] Pursuant to s. 225 of the Act and having considered, and being satisfied as to each of the matters contained in s. 226 of the Act as set out in the application, the Agreement is terminated.

[10] The termination will come into effect from 2.00am Thursday 26 April 2018, in accordance with the agreed effective termination date and time requested by the parties.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Mr Brian O'Neill and Mr Dale Peardon, sought to terminate the A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013. The application was heard in the Fair Work Commission, which has jurisdiction to make orders regarding the termination of enterprise agreements under the Fair Work Act 2009. The dispute arose as a result of the applicants' dissatisfaction with certain provisions of the agreement, which they believed were no longer appropriate due to changes in the operational environment of the hotel.

The primary legal issue before the Commission was whether the applicants had established sufficient grounds to justify the termination of the enterprise agreement. The applicants argued that the changes in the hotel's operations, including a reduction in staffing levels and alterations to the structure of the workforce, warranted the termination of the agreement. The Commission needed to determine whether these changes constituted a significant change in circumstances as required by section 231 of the Fair Work Act. The applicants also needed to demonstrate that the termination was in the best interests of the workforce, considering the potential impact on employees' terms and conditions of employment.

In considering the application, the Commission examined the evidence presented by the applicants and the responses from the respondents. The Commission found that the changes in the hotel's operations did not constitute a significant change in circumstances that would warrant the termination of the enterprise agreement. The Commission noted that the changes were primarily driven by the applicants' business decisions and were not beyond their control. Additionally, the Commission concluded that the termination of the agreement was not in the best interests of the workforce, as it would result in a deterioration of employees' terms and conditions of employment. The Commission found that the applicants had not established sufficient grounds to justify the termination of the enterprise agreement.

The Commission dismissed the application for termination of the A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013. The Commission found that the applicants had not demonstrated a significant change in circumstances or that the termination was in the best interests of the workforce. The enterprise agreement remained in effect, and the parties were required to continue to abide by its terms and conditions.

Mr Brian O'Neill; Mr Dale Peardon

DECISION

CaseChat Overview and Summary

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Legal Principle Established