Nomad World Hotels T/A Arts Factory Lodge

[2022] FWCA 1016

[2022] FWCA 1016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Nomad World Hotels T/A Arts Factory Lodge

(AG2021/9318)

DEPUTY PRESIDENT CROSS SYDNEY, 23 MARCH 2022

Application for termination of the Arts Factory Employees' Collective Agreement 2009

1. An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by Nomad World Hotels T/A Arts Factory Lodge (the Applicant) for approval to terminate the Arts Factory Employees' Collective Agreement 2009 (the Agreement). The nominal expiry date of the Agreement is in February 2014.

1. Sections 225 and 226 of the Act provide:

“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.”

Consideration

1. The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of February 2014.

1. The Agreement does not cover any employee organisations.

1. The Applicant identified that the Agreement covers 16 employees.

1. On 22 November 2020 the Applicant held a secret ballot in relation to the application for the termination of the Agreement with its employees covered by the Agreement. Of those employees, 13 employees cast a vote, with 13 employees voting that they did wish for the Agreement to be terminated, and 0 employees voting that they did not wish for the Agreement to be terminated. The remainder did not vote.

1. On 24 January 2022, my Chambers directed the Applicant to advise the Applicant’s employees of the Application, and request that any submissions that those employees wished to make, be filed with the Commission.

1. The Applicant complied with the above Direction, and advised their employees of the Application, and the means by which they may make a submission to Chambers in respect of the Application. No submissions were received by the Commission from any employee of the Applicant.

Determination

1. Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that is not contrary to the public interest to terminate the Agreement.

1. Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR739567>