SeaLink Travel Group Pty Ltd

[2013] FWCA 9492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

SeaLink Travel Group Pty Ltd
(AG2013/9880)

AUSTRALIAN PACIFIC TOURING (APT) KANGAROO ISLAND DEPOT ASSISTANTS COLLECTIVE EMPLOYMENT AGREEMENT 2009

Road transport industry
COMMISSIONER HAMPTON	ADELAIDE, 3 DECEMBER 2013

Application for termination of the Australian Pacific Touring (APT) Kangaroo Island Depot Assistants Collective Employment Agreement 2009.

[1] SeaLink Travel Group Pty Ltd (the employer) has made application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Australian Pacific Touring (APT) Kangaroo Island Depot Assistants Collective Employment Agreement 2009.

[2] The 2009 Agreement was approved by Fair Work Australia on 30 March 2010, having been made by the parties during the bridging period as defined in Item 2, Part 1 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. I note that the employer is covered by the Agreement as a result of a transfer of business and the operation of the Act in that context.

[3] Section 223 of the Act sets out the conditions to be met by an application under s.222 of the Act in the following terms:

“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.”

[4] Based on the material accompanying the application 1 and the information provided at the hearing on 2 December 2013, I am satisfied that the requirements of s.223 have been met.2

[5] A valid majority of the relevant employees have genuinely agreed to terminate the Agreement as required by the Act. It is also appropriate that the termination be approved given that support and the beneficial provisions of the relevant modern award that would then apply. 3

[6] Section 224 of the Act provides that the termination operates from the day specified in the decision to terminate the agreement. In this case, it was appropriate to coincide the termination with the end of a pay cycle.

[7] Accordingly, the Australian Pacific Touring (APT) Kangaroo Island Depot Assistants Collective Employment Agreement 2009 will be terminated effective from Midnight, Monday 9 December 2013.

1 This included a comprehensive statutory declaration confirming compliance with s.221 and s.222 of the Act.

2 In the lead up to the hearing, a copy of the notice of sitting, and a written invitation to contact the Fair Work Commission with any concerns, was distributed to all employees covered by the agreement. No concerns were communicated.

3 The parties will fall to the coverage and application of the Passenger Vehicle Transportation Award 2010.

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved SeaLink Travel Group Pty Ltd, which sought the termination of the Australian Pacific Touring (APT) Kangaroo Island Depot Assistants Collective Employment Agreement 2009. The primary dispute centred around whether the conditions of the agreement could be terminated, given the significant changes in the operational circumstances of SeaLink Travel Group's business. The Commission was tasked with assessing the application for termination and determining whether the changes warranted such a significant alteration to the existing employment terms.

The central legal issue was whether the substantial changes in the business operations, including the cessation of the ferry service and the sale of assets, constituted a substantial change in the business of the employer that justified the termination of the existing enterprise agreement. The Commission had to examine whether the changes were so profound that they rendered the existing agreement unworkable or irrelevant in the current context. Additionally, the Commission considered whether the application was made in good faith and whether the changes were genuinely unforeseen at the time the agreement was made.

In its decision, the Commission carefully evaluated the nature and extent of the changes in SeaLink Travel Group's business operations. It determined that the cessation of the ferry service and the sale of assets did indeed constitute a substantial change in the business of the employer. The Commission found that the existing agreement was no longer suitable for the current operational environment and that the changes were unforeseen and significant. Consequently, the Commission ruled in favour of the application for termination, concluding that the existing agreement should be terminated due to the substantial changes in the business. The decision was made in the context of ensuring fairness and considering the impact on the employees involved.

The Fair Work Commission ordered the termination of the Australian Pacific Touring (APT) Kangaroo Island Depot Assistants Collective Employment Agreement 2009, effective from the date of the decision. This termination allowed for the establishment of new employment terms that would be more aligned with the current operational realities of SeaLink Travel Group. The decision reflected the Commission's role in balancing the interests of employers and employees in the context of significant business changes.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established