PLS (NT) Pty Ltd T/A Pit Lane Liquor

[2022] FWCA 1519

[2022] FWCA 1519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

PLS (NT) Pty Ltd T/A Pit Lane Liquor

(AG2022/1130)

PIT LANE LIQUOR HOSPITALITY EMPLOYEE ENTERPRISE AGREEMENT 2009

Northern Territory
COMMISSIONER RIORDAN	SYDNEY, 5 MAY 2022

Application for termination of the Pit Lane Liquor Hospitality Employee Enterprise Agreement 2009.

1. PLS (NT) Pty Ltd T/A Pit Lane Liquor (the Applicant) has applied, pursuant to s.225 of the Fair work Act 2009 (the Act) to terminate the Pit Lane Liquor Hospitality Employee Enterprise Agreement 2009 (the Agreement).

1. The Agreement has passed its nominal expiry date.

1. There are no employee organisations covered by the Agreement.

1. Section 225 of the Act provides:

“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.”

1. Section 226 of the Act provides:

“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. In support of the application, Ms Elisabeth Idsenga, Working Director of the Applicant, provided a declaration dated 12 April 2022. The declaration provided, inter alia, that the Applicant and its employees are not bargaining for a new Agreement and therefore termination will not affect any negotiation process. Ms Idsenga provided that workplace law has changed substantially since the Agreement came into operation, including substantial changes to the Hospitality Industry (General) Award 2020 (the Award). Ms Idsenga provided that termination of the Agreement would result in employees’ terms and conditions of employment being consistent with industry standards in accordance with the Award.

1. Further, Ms Idsenga provided that all employees were notified of the Applicant’s intention to file the Application, with tailored information provided to each employee. Comparison documents were provided to each employee during a physical meeting, with follow up correspondence also sent inviting further meetings for those employees who sought one. Following the meetings, all employees indicated their support to terminate the Agreement. The Applicant filed documents in support of this statement.

1. Notably, Ms Idsenga stated that all employees currently receive a higher ordinary hourly rate under the Agreement than that provided under the Award. The Applicant has committed to maintaining the employees’ current rate until the Award rate is equal to those contained in the Agreement.

1. I conducted a brief telephone conference with Ms Idsenga and her representative, Ms Sarah Mangan of the Queensland Hotels Association, on 5 May 2022. Ms Mangan and Ms Idsenga made further submissions in support of the application.

1. Based on the material contained in the employer’s declaration and the oral submissions provided at the conference of 5 May 2022, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement

1. The termination will operate from 5 May 2022.

1. An order giving effect to this decision is separately issued in PR741298.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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