Royal Adelaide Golf Club Incorporated T/A Royal Adelaide Golf Club

[2021] FWCA 5623

[2021] FWCA 5623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Royal Adelaide Golf Club Incorporated T/A Royal Adelaide Golf Club
(AG2021/6487, AG2021/6489, AG2021/7492, AG2021/6495)

ROYAL ADELAIDE GOLF CLUB INC MANAGERIAL EMPLOYEE COLLECTIVE AGREEMENT 2009;
ROYAL ADELAIDE GOLF CLUB INC HOSPITALITY EMPLOYEES ENTERPRISE AGREEMENT 2012;
ROYAL ADELAIDE GOLF CLUB INC CLERICAL AND ADMINISTRATIVE EMPLOYEE ENTERPRISE AGREEMENT 2012;

ROYAL ADELAIDE GOLF CLUB INC GREENKEEPING EMPLOYEES ENTERPRISE AGREEMENT 2012

Amusement, events and recreation industry
COMMISSIONER PLATT	ADELAIDE, 8 SEPTEMBER 2021

Applications for termination of enterprise agreements

[1] On 30 July 2021, the Royal Adelaide Golf Club Incorporated T/A Royal Adelaide Golf Club has made applications for the termination of four enterprise agreements that have passed their nominal expiry date – Royal Adelaide Golf Club Inc Hospitality Employees Enterprise Agreement 2012 (the Hospitality Agreement), Royal Adelaide Golf Club Inc Managerial Employee Collective Agreement 2009 (the Managerial Agreement), Royal Adelaide Golf Club Inc Clerical and Administrative Employee Enterprise Agreement 2012 (the Clerical Agreement), and Royal Adelaide Golf Club Inc Greenkeeping Employees Enterprise Agreement 2012 (the Greenkeeping Agreement)(collectively, the Agreements) – pursuant to s.222 of the Fair Work Act 2009 (the Act).

Relevant Legislation

[2] Sections 222 and 223 of the Act are relevant to this application and are as follows:

“222 Application for the FWC's approval of a termination of an enterprise agreement

Application for approval

(1)  If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)  The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)  The application must be made:

(a)  within 14 days after the termination is agreed to; or

(b)  if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a)  the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b)  the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c)  the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)  the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The Applications were made within the time frame required.

[4] Attached to the application was a Statutory Declaration of Mr Andrew Gay, General Manager which is relevantly summarised as follows:

•  The Managerial Agreementexpired on 1 July 2012, the remainder of the Agreements expired on 2 July 2012.

•  An employee consultation process took place between 19 June 2021 and 6 July 2021. Employees were advised of the impact of the termination and measures to avert reductions in overall entitlements. Copies of the communications were provided.

•  A ballot was conducted from 19 June to 21 July 2021.

•  In respect of the Managerial Agreement, of the 3 employees covered, 2 employees voted, and both were in favour of the termination.

•  In respect of the Hospitality Agreement, of the 20 employees covered, 12 employees voted and 9 were in favour of the termination.

•  In respect of the Clerical Agreement, of the 12 employees covered, all voted in favour of the termination.

•  In respect of the Greenkeeping Agreement, of the 14 employees covered, 12 voted and all were in favour of the termination.

[5] I am satisfied that the employer complied with subsection 220(2) of the Act by giving the affected employees a reasonable opportunity to decide whether they want to approve the proposed termination. There are no other reasonable grounds for believing that the employees have not agreed to the termination.

[6] I have sought information from the Applicant on how they proposed to ensure that no employee will be disadvantaged. I have been provided with a comparison chart detailing the impacts on each employee and sample contracts of employment and Individual Flexibility Agreements designed to give effect to that representation. I am satisfied that employees will not be disadvantaged by the termination.

[7] No employee organisations are covered by the Agreements.

[8] I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreements.

[9] The terminations will come into effect from the date of this decision.

COMMISSIONER

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