Shortcorp Management Pty Ltd

[2022] FWC 3057

[2022] FWC 3057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Shortcorp Management Pty Ltd

(AG2022/4482)

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 24 NOVEMBER 2022

Application for termination of the Shortcorp Management Pty Ltd Enterprise Agreement 2013

1. An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by Shortcorp Management Pty Ltd (the Applicant) to terminate the Shortcorp Management Pty Ltd Enterprise Agreement 2013 (the Agreement). The nominal expiry date of the Agreement is 15 May 2017.

1. Section 225 of the Act applies to applications to terminate an enterprise agreement that has passed its nominal expiry date. I am satisfied that the Agreement is an enterprise agreement, and that its nominal expiry date has passed.

1. Sections 225 and 226 of the Act provide:

“225 Application for termination of an enterprise agreement after its nominal expiry  date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)   one or more of the employers covered by the agreement;

(b)   an employee covered by the agreement;

(c)   an employee organisation covered by the agreement.”

“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.”

1. On 31 October 2022 my Chambers made the following Directions:

1. Shortcorp Management Pty Ltd (the Applicant) is to notify the employees covered by the Shortcorp Management Enterprise Agreement (the Agreement) via email, of Direction 2 below, by 5:00pm 3 November 2022.

2. Any employee covered by the Agreement, who wishes to make any submission in relation to the Applicant’s application to terminate the Agreement pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Application) is to email [Chambers email address] with their submissions, by 4:00pm 10 November 2022.

3. Contemporaneously with sending the above email to employees, the Applicant must attach, or otherwise evidence communication of, the documents relevant to the Application, including but not limited to the Application documents, and the Agreement.

Consideration

1. The Applicant is an employee covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of 15 May 2017.

1. The Agreement does not cover any employee organisation.

1. The views of the employees covered by the Agreement were sought, and no employees provided their views to my Chambers.

Determination

1. Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that it is not contrary to the public interest to terminate the Agreement.

1. Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect at 6:00AM on 28 November 2022.

DEPUTY PRESIDENT

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