Mulpha Sanctuary Cove (Developments) Pty Limited
[2022] FWCA 22
•6 JANUARY 2022
| [2022] FWCA 22 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Mulpha Sanctuary Cove (Developments) Pty Limited
(AG2021/8521)
| Liquor and accommodation industry | |
| COMMISSIONER MATHESON | SYDNEY, 6 JANUARY 2022 |
Application for termination of the Mulpha Sanctuary Cove (Developments) Pty Limited Employee Collective Agreement 2009.
On 23 November 2021, Mulpha Sanctuary Cove (Developments) Pty Limited (Applicant) filed an application (Application) to terminate the Mulpha Sanctuary Cove (Developments) Pty Limited Employee Collective Agreement 2009 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.
The Agreement was approved by Senior Deputy President Richards of then Fair Work Australia on 18 December 2009[1] and was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).
Legislation
The relevant provisions of the Act are 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 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.”
Consideration – s.225
Is the Applicant an employer covered by the Agreement?
Clause 1.4 of the Agreement names “Mulpha Sanctuary Cove (Developments) Pty Limited” as a party to the Agreement. The Applicant is “Mulpha Sanctuary Cove (Developments) Pty Limited”. I am satisfied it is the same legal entity.
Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.
Has the Agreement passed its nominal expiry date?
An undertaking to the Agreement provides that the Agreement has a nominal expiry date of no more than 4 years from the date Fair Work Australia approves the Agreement, being 24 December 2013. Having considered the materials before the Commission and the undertaking to the Agreement, I am satisfied the Agreement has passed its nominal expiry date.
Consideration – s.226
Section 226(a) – Public interest
It is declared in the Form F24A that there are three employees to whom the Agreement applies. Having considered the material before the Commission, the circumstances of this application are such that the consequences of termination would have limited effect, if any, beyond the immediate parties. There is no evidence before the Commission to demonstrate otherwise.
In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the enterprise Agreement.
Section 226(b) – Appropriateness
Section 226(b) of the Act requires the Commission to consider whether termination of the Agreement is appropriate, having regard to all the circumstances including the views of the employees, each employer and each employee organisation (if any) covered by the agreement and their circumstances, including the likely effect that the termination will have on each of them.
The Application indicates that only one employer is covered by the Agreement and the Applicant is the only employer named as a party to the Agreement. It is declared in the Form F24A that the Applicant considers the termination will give rise to greater operational efficiency.
On 24 November 2021, the Commission directed that:
(a)by no later than 4:00pm on 25 November 2021, the Applicant must serve a copy of the directions, the Form F24B, Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement;
(b)by no later than 4:00pm on 29 November 2021, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with the direction above;
(c)by no later than 4.00pm on 2 December 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement an outline of arguments, statements of evidence or other documents the Applicant intend to rely upon in support of its application to terminate the Agreement;
(d)by no later than 4.00pm on 9 December 2021, any employee or employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement; and
(e)by no later than 4.00 pm on 13 December 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement any materials it wishes to file in reply.
The Commission’s directions also noted that if any employee or employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.
On 29 November 2021, Mr Ros Reeves, Executive General Manager Human Resources of the Applicant, filed a statutory declaration confirming compliance with the above directions.
There are no employee organisations covered by the Agreement.
It is declared in the Form F24A that the Agreement applies to three employees who have signed new employment contracts (conditional upon the termination of the Agreement) with no material change to their existing employment arrangements. It is also declared in the Form F24A that the Applicant has spoken to the three employees covered by the Agreement, that it has explained the termination application and the reasons for it and that each of the employees agreed to enter into new contractual arrangements to be underpinned by the Real Estate Industry Award 2020.
No submissions in opposition were filed by any employee.
Conclusion
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 6 January 2022. An Order to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] [[2009] FWAA 665].
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