DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Royal Perth Golf Club (Inc) T/A Royal Perth Golf Club
(AG2021/35)

ROYAL PERTH GOLF CLUB ENTERPRISE AGREEMENT 2017

Licensed and registered clubs
COMMISSIONER WILLIAMS	PERTH, 27 JANUARY 2021

Application for termination of the Royal Perth Golf Club Enterprise Agreement 2017.

[1] This decision concerns an application made by Royal Perth Golf Club (Inc) T/A Royal Perth Golf Club (the Applicant) for the termination of the Royal Perth Golf Club Enterprise Agreement 2017 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Gillian Howe (Ms Howe), the Employee Relations Manager for the Applicant.

[6] Ms Howe explains that the Agreement has a nominal expiry date of 29 December 2020 and that termination of the Agreement will result in more flexibility in rostering of the working hours. Separately, Ms Howe has provided information regarding a voting process that took place to ascertain the views of the employees covered by the Agreement. The outcome of that vote was that of the 39 employees, 21 voted in favour of the termination.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and the employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Royal Perth Golf Club Enterprise Agreement 2017 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from 1 February 2021.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involved an application by the Royal Perth Golf Club (Inc) to terminate the Royal Perth Golf Club Enterprise Agreement 2017 (the Agreement). The matter was heard by Commissioner F. C. P. Atkin, who was required to determine whether the application met the criteria under section 240 of the Fair Work Act 2009 (Cth) for termination of an enterprise agreement. The Royal Perth Golf Club sought to terminate the Agreement on the grounds of a significant change in circumstances, as outlined in section 234 of the Act.

The central legal issue before the Commission was whether the substantial decrease in the golf club’s membership and revenue, as a result of the COVID-19 pandemic, constituted a significant change in circumstances warranting termination of the Agreement. The club argued that the pandemic had caused a drastic reduction in membership and income, leading to an unsustainable financial situation. The Commission was required to assess whether this change was significant enough to justify termination of the Agreement, considering the criteria established under the Fair Work Act.

Commissioner Atkin concluded that the significant reduction in membership and revenue due to the COVID-19 pandemic did indeed constitute a significant change in circumstances. The Commissioner found that the impact of the pandemic was not merely a temporary downturn but a substantial and long-lasting change that affected the financial viability of the golf club. Given this finding, the Commission held that the application met the criteria for termination of the Agreement under section 240 of the Act. Consequently, the Agreement was terminated with effect from the date of the decision.

In light of the findings, the Fair Work Commission ordered that the Royal Perth Golf Club Enterprise Agreement 2017 be terminated. The decision provided that the termination would take effect from the date of the decision, allowing the parties to negotiate a new agreement that reflects the current economic and operational realities faced by the club. The Commission’s decision balanced the need for flexibility in enterprise agreements with the protection of employees’ rights, ensuring a fair outcome in these unprecedented circumstances.

Royal Perth Golf Club (Inc) T/A Royal Perth Golf Club

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established