Royal Agricultural Society of NSW

[2013] FWCA 6968

[2013] FWCA 6968

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Royal Agricultural Society of NSW
(AG2013/8584)

THE ROYAL AGRICULTURAL SOCIETY OF NSW AND THE AUSTRALIAN WORKERS’ UNION WORKPLACE AGREEMENT 2008

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 SEPTEMBER 2013

Application for termination of the Royal Agricultural Society of NSW and Australian Workers’ Union Workplace Agreement 2008.

[1] This is an application, filed by the Royal Agricultural Society of NSW (the ‘applicant’) pursuant to Item 15, Sch 3 of the Fair Work (Transitional Provisions and Consquential Amendments) Act 2009 (the ‘Transitional Act’) and s 222 of the Fair Work Act 2009 (the ‘Act’) to terminate the Royal Agricultural Society of NSW and the Australian Workers’ Union Workplace Agreement 2008 [AC320452]. Relevantly, the Agreement has passed its nominal expiry date of 30 June 2011. The employees would otherwise be covered by the Amusement, Events and Recreation Award 2010 [MA000080] (the ‘Modern Award’).

[2] The relevant provisions of the Act governing this application are set out at ss 220-224 as follows:

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

[3] The application was supported by a statutory declaration of Ms R Barry, General Manager, Human Resources (s 222(2)). Ms Barry said that the current employees of the applicant were sent a postal invitation to attend an information session on Wednesday 24 July 2013 to discuss the termination of the Agreement. Those that did not RSVP were contacted by telephone. Those that could not attend were spoken to, one on one, by Human Resources staff of the applicant. Some employees did not respond to the invitation or to the telephone calls. Following the information session, Human Resources staff spoke with all those who attended, on a one on one basis, to discuss how the change would affect them individually. Ballot papers were issued on 24 July 2013 to be returned on 5 August 2013. 17 ballot papers were issued, 11 were returned and 8 of these were in favour of terminating the Agreement.

[4] Mr G Beard of the Union also provided a statutory declaration. He said that the Agreement covered full time and casual employees of the applicant who perform operational and maintenance functions. He said that the wage rates specified in the Agreement are less than those prescribed by the Modern Award. He said that he had read the application of the applicant and the accompanying statutory declaration of Ms Barry and the Union supported the termination of the Agreement.

[5] Having considered the applicant’s submissions and upon reviewing the application and the statutory declarations of Ms Barry and Mr Beard, I am satisfied that all the requirements of the Act, in particular, ss 220, 221 and 223 have been met. Accordingly, the Royal Agricultural Society of NSW and the Australian Workers’ Union Workplace Agreement 2008 is terminated. Pursuant to s 224 of the Act, the termination is to take effect on and from 16 September 2013.

DEPUTY PRESIDENT

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<Price code A, AC320452  PR541782>