Newdegate Nominees Pty Ltd

[2019] FWCA 7970

[2019] FWCA 7970

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Newdegate Nominees Pty Ltd
(AG2019/4321)

NEWDEGATE NOMINEES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009-2013

Amusement, events and recreation industry
DEPUTY PRESIDENT BARCLAY	HOBART, 26 NOVEMBER 2019

Application for termination of the Newdegate Nominees Pty Ltd Employee Collective Agreement 2009-2013.

[1] This is an Application to terminate the Newdegate Nominees Pty Ltd Collective Agreement 2009-2013 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] The Agreement relates to employees employed at the State Cinema in Hobart. The Application is supported by two statutory declarations made on 12 and 19 November 2019.

The declarations of John Leo Kelly are short, and for convenience I set them out in full:

12 November 2019

“In June 2009, staff voted to adopt a Collective Agreement, namely the Newdegate Nominees Pty Ltd Employee Collective Agreement 2009-2013.

As described in the information sheet, provided to employees at the time, the prime reason for an agreement was to provide predictability for the following four years in light of previous changes to the Award and the Modern Award changes proposed for 2010.

The proposed Collective Agreement was designed to replicate the older Award with only a few additions to give flexibility, if mutually agreed; in summary:

1. Pay rates would remain exactly the same.

2. Pay rises would be the same as the existing Fairpay Commission (later Fairwork) annual changes to the relevant Award.

3. Flexibility arrangements added:

a. Ability to include laundry allowance into an adjusted hourly rate if mutually agreed

b. Ability to average hours over a four week period for employees in the four week rotating roster.

Over the following four years, staff were paid under this Collective Agreement and

pay rises were awarded exactly as determined for the Modern Award that replaced

the old Entertainment and Broadcast Industry- Cinema Award 1998, the Broadcasting,

Recorded Entertainment and Cinema Award 2010. This included the adoption of the

25% casual loading even though this was not required under the Collective Agreement.

Once the Collective Agreement reached its nominal expiry date of 30th June 2013, I was

under the impression that we would have to create a new agreement or go back to the Modern Award. I did not understand that the Collective Agreement did not actually expire automatically.

Around the time of that nominal expiry date we had a staff meeting to discuss this and it was proposed that we return to the Modern Award as there was no difference between the pay rates and conditions of the Modern Award and our Collective Agreement. There was unanimous agreement from all present and from the first full pay after the 1st of July 2013, staff were paid under the Modern Award, the Broadcasting, Recorded Entertainment and Cinema Award 2010.

From a staff perspective, apart from the annual Fairwork pay increase for 1st July 2013, there was no effective change to their pay and conditions. All staff have been paid and employed under the Modern Award since that time.

Whilst we carried out the process, within the organisation, to stop using the Collective Agreement, I did not realise, until recently, that I had to actually apply to cancel the Collective Agreement formally.

Accordingly I am requesting that the Fairwork Commission cancel the agreement with effect from the 1st July 2013 and declare that no employee was disadvantaged, in any way, by the proposed cancellation and subsequent transfer to the Modern Award.” 1

19 November 2019

“Pursuant to the requirements of s 226 of the Fair Work Act, in mid 2013, the view of all employees, who were employed under the Newdegate Nominees Pty Ltd Employee who were employed under the Newdegate Nominees Pty Ltd Employee Collective Agreement 2009-2013 (The Agreement), was sought in relation to returning to being paid under the terms and conditions of the Broadcasting, Recorded Entertainment and Cinemas Award 2010 (The Award). This was done at a staff meeting in mid 2013 and all staff, present, were in agreement.

All staff, employed subsequent to July 1st 2013, were employed under the Award and not the Agreement.

There are six staff, still currently employed, who transitioned from the Agreement to the Award in 2013. They are Janet Dale, Ellen Jensen, Sirpa Lovendale, Beatrice Rueckert, Emma Wilson & Melinda Scott. Each of these staff members have been made aware of application to cancel the Agreement. None have expressed any particular interest in the matter.

No employee organization has been involved, or has requested to be involved, with either the original creation of the Agreement or the subsequent change back to the Award. There has been no employee organization or union representation made in relation to any employee payments or conditions in the past 10 years.” 2

[3] It can be seen that since 2013, and with the agreement of the staff at the time, all employees have been employed pursuant to the Broadcasting, Recorded Entertainment and Cinemas Award 2010. Whilst the Agreement has technically been in force it is to be doubted that any of its clauses would have had any real work to do. Certainly the levels of pay would have been the award rate as the Agreement would have fallen behind that rate over time.

[4] From 2013 the terms of the Agreement and the terms of the Award were substantially the same. There was agreement that the employees would thereafter have their employment terms and conditions regulated by the Award.

[5] The Application is brought because it was not appreciated by the employer that the Agreement simply did not expire at the nominal expiry date.

[6] I turn to the requirements of s 226 of the Act.

[7] I am satisfied that it is not contrary to the public interest to terminate the Agreement. The employees have not been formally employed under the terms of the Agreement since 2013. There is nothing to suggest that the various objects of the Act, employment levels or maintenance of industrial standards will be affected by the termination of the Agreement.

[8] The views of the employees in 2013 were that there was agreement to be employed under the award. That amounts to de facto agreement that the Agreement will no longer apply. Put another way, in 2013 the employees would not have opposed the termination of the Agreement because they agreed to be employed pursuant to the terms of the Award.

[9] The views of the employees in 2019 are neutral.

[10] The employer wishes the Agreement to be terminated. There are no employer or employee organisations relevant to the matter.

[11] The circumstances of the employees and employer are outlined in the statutory declarations. Termination of the Agreement will simply accord with the status quo since 2013. The reasons for the continuing application of the Agreement and for its termination are explained by the statutory declarations.

[12] Taking account of the circumstances as a whole I am prepared to terminate the Agreement. The Agreement will terminate from the date of the order which accompanies these reasons.

DEPUTY PRESIDENT

 1   Statutory Declaration of John Leo Kelly, dated 12 November 2019.

 2   Statutory Declaration of John Leo Kelly, dated 19 November 2019.

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