Scitech Discovery Centre - [2022] FWCA 562

[2022] FWCA 562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Scitech Discovery Centre

(AG2022/291)

Scitech Casual Employees Enterprise Agreement 2011

Amusement, events and recreation industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 21 FEBRUARY 2022

Application for termination of the Scitech Casual Employees Enterprise Agreement 2011

This decision concerns an application by Scitech Discovery Centre (the Applicant) for the termination of the Scitech Casual Employees Enterprise Agreement 2011 (the Agreement),[1] under s 225 of the Fair Work Act 2009 (the Act).

Section 225 of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

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.

The Applicant held no objection to the application being determined on the papers and I consider that it is appropriate to do so.

In support of its application, the Applicant provided a statutory declaration from Sam Kronja its interim Chief Executive Officer (CEO) and undertakings (see Annexure A).

The Applicant provided context about the application to terminate the Agreement in the CEO’s statutory declaration. That context is as follows.

Background to the application

The Agreement was negotiated with casual employees in 2010 and has been in operation since 7 March 2011. It covers all the Applicant’s casual employees who would otherwise be covered by the Amusement Events and Recreation Award 2020 (Award).[2]

The Applicant employs 140 employees in roles on either a full-time, part-time, or casual basis. Employees performing roles on a full-time and part-time basis are employed under common law contracts underpinned by the Award. In contrast, the casual employees are engaged under the Agreement. The Agreement has not been varied since approval and its nominal term expired on 30 June 2013. Those casual employees covered by the Agreement are not in the process of bargaining for a replacement to the Agreement and the Applicant has not received any indication from employees covered that they would like to bargain for a replacement agreement

Currently, the Agreement covers 32 casual employees, which represents 24% of the Applicant’s total workforce. These casual employees are engaged in the following positions: a) Discovery Centre, Casual Science Presenter (28 staff); b) Outreach, Casual Science Presenter (2 staff); and c)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Scitech Discovery Centre [2022] FWCA 562
Case: [2022] FWCA 562
Decision Date: 21 FEBRUARY 2022

CaseChat Overview and Summary

The Fair Work Commission considered an application by Scitech Discovery Centre (the Applicant) for the termination of the Scitech Casual Employees Enterprise Agreement 2011 (the Agreement) under s 225 of the Fair Work Act 2009 (the Act). The Agreement had been in operation since 7 March 2011 and had passed its nominal expiry date of 30 June 2013. The Applicant argued that the Agreement was no longer suitable for its operations, causing inefficiencies and administrative burdens due to the differences in terms and conditions between casual and permanent employees. The Applicant also claimed that the Agreement no longer reflected its operational reality and that the Agreement's provisions were outdated.

The legal issues the court had to decide included whether the termination of the Agreement was not contrary to the public interest and whether it was appropriate to terminate the Agreement, taking into account all the circumstances, including the views of the employees, employers, and employee organisations covered by the agreement, and the likely effect that the termination would have on them.

In its reasoning, the court found that the termination of the Agreement would not adversely affect the public interest as it would ensure the maintenance of proper industrial standards. The court also found that the Applicant had undertaken a comprehensive consultative process with its employees regarding the proposed termination, and that the employees had demonstrated support for the termination. Taking into account all the circumstances, the court considered it appropriate to terminate the Agreement.

The court issued an order terminating the Agreement with effect on 21 February 2022. The casual employees covered by the Agreement would be employed by the Applicant on common law contracts underpinned by the Award, and the Applicant would implement its new employment structure, which would permit it to properly delineate positions based on the seniority of the duties undertaken by its casual employees. The court found that the termination of the Agreement would not lead to a loss of pay for any current casual employees covered by the Agreement.

Orders