NT Pubco Pty Ltd T/A Full Moon Hotel on Bramble Bay

[2020] FWCA 6416

[2020] FWCA 6416

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

NT Pubco Pty Ltd T/A Full Moon Hotel on Bramble Bay

(AG2020/3389)

Drinx Enterprise Agreement 2011

Hospitality industry
Deputy President Lake	BRISBANE, 27 NOVEMBER 2020

Application for termination of the Drinx Enterprise Agreement 2011 – application granted – agreement terminated.

1. An application pursuant to s 225 of the Fair Work Act 2009 (the Act) was made by NT Pubco Pty Ltd T/A Full Moon Hotel on Bramble Bay (the Applicant) to terminate the Drinx Enterprise Agreement 2011 (the Agreement).

1. The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 18 August 2015.

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.”

1. Ms Lucinda Black, Director of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Ms Black stated that impacted staff will receive the highest alternative, between the current rate and the Award rate – effectively that no staff will be worse off. Ms Black asserts that it will provide administrative benefit to the employer, by streamlining the number of reference documents.

1. The Forms 24B and 24C filed were not detailed enough to make a determination to terminate as per s 226 of the Act. Accordingly, Chambers requested further information on 25 November 2020. On 26 November 2020, the Applicant provided an email with further documentation, including:

·   Letters to impacted staff outlining new salary, rates of pay and Award classification (as applicable); and

·   An excel table outlining the differences and more beneficial impact to employees.

1. While these beneficial terms are important with regard to s 226(1)(b)(ii), I requested further information to be satisfied that the employees views had been sought and not simply that the employees had been given the relevant information. On 27 November 2020, further information was provided on this point, mainly:

·   Several staff had approached the Venue Manager asking to be placed under the Award;

·   Personalised letters were sent advising and were and where queries were raised, a meeting was held to address those; and

·   On 25 November 2020, the Respondent contacted all staff to confirm whether there was any opposition, with no objection being received.

1. It is also noted that 8 of the 13 staff have already signed their revised contract of employment.

1. I am satisfied that termination of the Agreement is not contrary to the public interest as termination of the Agreement would result in employees being covered by a modern award and the NES, thus achieving the object of the Act of providing a guaranteed safety net of fair, relevant, and enforceable minimum terms and conditions of employment. Evidence was given that the staff would be equal or better off and this weighed as a benefit in my consideration.

1. I was not made aware of anything that may indicate it would be contrary to the public interest to terminate the Agreement.

1. At the date of this Decision, no employees covered by the Agreement have objected to the termination of the Agreement.

1. Taking into account the information provided in response to the matters in s 226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the agreement on the basis that the material satisfies the legislative requirements that the termination of the Agreement is appropriate. I am satisfied it is not contrary to the public interest to terminate the Agreement.

1. The application is therefore granted and the Agreement is terminated. Termination of the Agreement will take effect from 29 November 2020.

1. I Order accordingly.

DEPUTY PRESIDENT

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