DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Raincheck North Hobart Pty Ltd T/A Raincheck Lounge
(AG2017/3008)

RAINCHECK LOUNGE EMPLOYEE COLLECTIVE AGREEMENT 2008

Tasmania
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 21 AUGUST 2017

Termination of the Raincheck Lounge Employee Collective Agreement 2008.

[1] On 21 July 2017, Raincheck North Hobart Pty Ltd T/A Raincheck Lounge applied to terminate the Raincheck Lounge Employee Collective Agreement 2008 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Raincheck North Hobart Pty Ltd T/A Raincheck Lounge, the Fair Work Commission was tasked with resolving a dispute regarding the termination of the Raincheck Lounge Employee Collective Agreement 2008. The employer, Raincheck North Hobart, sought to terminate the agreement, which was in effect between the employer and the employees represented by the Australian Licensed Trade and Hospitality Association of Employees (AHLHAE). The dispute centred on whether the termination was lawful and if the employer had complied with the necessary provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the employer had followed the appropriate process and met the conditions required for terminating the collective agreement. The Commission considered the employer's right to give notice of termination under section 233 of the Act, the need for the employer to demonstrate a genuine occupational health and safety reason for termination, and whether the employer had engaged in good faith bargaining as required by the Act. The Commission also evaluated if the employer had given the requisite 90-day notice and whether the termination was procedurally fair.

After examining the evidence and arguments presented by both parties, the Fair Work Commission concluded that the employer had not complied with the statutory requirements for terminating the collective agreement. The Commission found that the employer had failed to provide the necessary 90-day notice and had not demonstrated a genuine occupational health and safety reason for the termination. Additionally, the employer had not engaged in good faith bargaining as mandated by the Act. Consequently, the termination of the collective agreement was deemed invalid.

As a result of the Commission's findings, the collective agreement remained in effect, and the employer was directed to continue to adhere to its terms. The Fair Work Commission did not grant the employer's application to terminate the agreement and instead upheld the continued validity of the collective agreement between the parties.

Raincheck North Hobart Pty Ltd T/A Raincheck Lounge

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established