Mr Graham Higgins
[2017] FWCA 4077
•7 AUGUST 2017
| [2017] FWCA 4077 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date
Mr Graham Higgins
(AG2017/2301)
Y.B.O.S Pty Ltd Enterprise Agreement 2009
| Hospitality industry | |
| Deputy President Sams | SYDNEY, 7 AUGUST 2017 |
Application for termination of the Y.B.O.S Pty Ltd Enterprise Agreement 2009.
This is an application, filed on 16 June 2017, by Mr Graham Higgins (the ‘applicant’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the Y.B.O.S Pty Ltd Enterprise Agreement 2009 (AE872467) (the ‘Agreement’). The Agreement covers employees of Y.B.O.S Pty Ltd t/a Big4 Tweed Billabong Holiday Park (the ‘Company), who work at its holiday park in Tweed Heads, New South Wales. Relevantly, the Agreement passed its nominal expiry date on 2 December 2013. The application seeks to have the employment conditions of the relevant employees covered instead by the Hospitality Industry (General) Award 2010 [MA000009](the ‘Award’).
The provisions of the Act governing applications of this kind, are set out as follows:
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 employees 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 is:
(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.
In a statutory declaration accompanying the application (Form F24C), Mr Higgins, who works for the applicant in a grounds maintenance role, put that the Award provides for terms and conditions that are more beneficial to employees, including the provision of penalty rates on weekends and before 7am and after 7pm, Monday to Friday. Mr Higgins said that if he had been employed under the Award, rather than the Agreement, he would have been significantly better off financially during his tenure with the applicant.
In a hearing for the application on 19 July 2017, Ms G Higgins appeared for himself and Mr A Tribe, General Manager appeared for the Company. During the hearing Mr Tribe requested that he be provided an opportunity to meet with his staff to understand their views of the application. In particular, he wanted to establish whether they would prefer to try to negotiate a new agreement, and in the meantime have the Agreement continue to operate, or revert to the Award. I granted the request, and listed the matter for further hearing on 28 July 2017. During that hearing on 28 July 2017, Mr Tribe advised the Commission that he had met with his staff, including Mr Higgins, the day prior and they expressed to him that they would prefer to be covered by the Award. Given this, Mr Tribe advised that the Company neither supports nor opposes the Agreement’s termination.
Having considered the application, the accompanying statutory declaration, the views of the parties and the terms of the Agreement, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. I have taken into account the views of the employees and the employer as well as the likely effect on both, which appears overwhelmingly positive. Accordingly, the Y.B.O.S Pty Ltd Enterprise Agreement 2009 (AE872467) is terminated. Pursuant to s 227 of the Act and with the consent of the parties, the termination is to take effect on and from the 9 August 2017.
DEPUTY PRESIDENT
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<Price code A, AE872467 PR595090>
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