Queensland Venue Co Pty Ltd
[2022] FWCA 1865
•7 JUNE 2022
| [2022] FWCA 1865 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Queensland Venue Co Pty Ltd
(AG2022/1576)
Hotels Agreement 2014
| Hospitality industry | |
| COMMISSIONER HUNT | BRISBANE, 7 JUNE 2022 |
Application for termination of the Hotels Agreement 2014
On 23 May 2022, Queensland Venue Co Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Hotels Agreement 2014 (the Agreement). The Agreement passed its nominal expiry date on 30 June 2017.
The application was supported by a Form F24C statutory declaration of Ms Rachel Checinski, the General Manager – Human Resources, which declared, amongst other things, the Employer’s view that employee rights and entitlement will revert to the Hospitality Industry (General) Award 2020 (Award) which contains generally comparable and, in most instances, more beneficial entitlements than the Agreement.
Further, the Award has been reviewed and updated over the years to include greater flexibilities and protections for employees. Ms Checinski, however, noted that in a sample pay cycle of four weeks, for three employees who worked more than 152 hours in that four-week cycle, they would be entitled to a greater payment under the Agreement than the Award. That example appears to me to be an exceptional circumstance, and otherwise the employees would be entitled to greater remuneration under the Award than the Agreement.
Ms Checinski declared that if the Agreement was terminated, the Employer will continue to pay each affected employee the base rate of the pay that they are currently paid, which for each affected employee is equal to or better than the base rate that employee would be entitled to under the Award. Ms Checinksi further declared that there are 2,135 employees covered by the Agreement, with 1,339 engaged on a casual basis and 333 employees being employed on a part-time basis.
The Employer provided copies of correspondence sent to employees in April 2022, advising them that it intended to seek termination of the Agreement, and their conditions would be governed by the Award. Ms Checinski declared that the Employer received feedback from 15 employees and filed in the Commission a summary of the feedback received from its employees. On 26 May 2022, the United Workers Union wrote to the Commission advising that it does not seek to make submissions in relation to this application.
Termination of an enterprise agreement after its nominal expiry date
Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which 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
Based on the material contained in the statutory declaration of Ms Checinski, and in consideration of s.266(a) of the Act, I am satisfied that the termination of the Agreement is not in contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.
As earlier noted, there are 2,135 employees covered by the Agreement. I am satisfied the Employer took appropriate steps to communicate the application to the large numbers of employees covered by the Agreement and invited their views. None of the employees or employee organisations covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.
I have had regard to the comparison summary provided by the Employer to employees covered by the Agreement on or about 14 April 2022, detailing the differences between the employees’ wages and conditions under the Agreement and the Award, and what would apply if the Agreement is terminated. I am satisfied that employees will be in a better position if the Agreement is terminated. I accept the Employer’s declaration that it will continue to pay affected employees’ base rate they are currently paid in circumstances where their base rate is equal to or better than the base rate entitled under the Award.
Having taken into account the circumstances of the employees and the likely effect that the termination will have on the employees, together with the Employer’s desire to terminate the Agreement, I consider that it is appropriate to terminate the Agreement.
In accordance with s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.
The termination will take effect from Monday, 13 June 2022 being the commencement of the next pay cycle.
COMMISSIONER
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