South Australian National Football League Inc T/A AAMI Stadium

[2016] FWC 8866

[2016] FWC 8866

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

South Australian National Football League Inc T/A AAMI Stadium
(AG2016/6783)

SOUTH AUSTRALIAN NATIONAL FOOTBALL LEAGUE

Licensed and registered clubs
COMMISSIONER PLATT	ADELAIDE, 8 DECEMBER 2016

Application for termination of the Agreement known as the South Australian National Football League Employees Collective Agreement 2007.

[1] This is an application by the South Australian National Football League Inc, trading as AAMI Stadium (SANFL), for the termination of the South Australian National Football League Employees Collective Agreement 2007 (the Agreement). The application is made pursuant Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act - Schedule 3 Item (2)(5)(c) and has a nominal expiry date of 31 October 2008.

[2] Item 16 of Schedule 3 of the Transitional Act provides as follows:

“16 Collective agreement-based transitional instruments: termination by agreement

16(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] The provisions of Subdivision D of Chapter 2 - Part 2-4 Division 7 of the Fair Work Act 2009 (the FW Act) are as follows:

“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 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 FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] SANFL is the employer party to the Agreement. SANFL submits that the Agreement covers the operation of the Checkside Tavern located at AAMI Stadium in West Lakes. The employees are engaged on a casual basis. At the time the Agreement was made, the work performed related to the provision of hospitality services associated with football matches played at AAMI Stadium on Friday nights and weekends. This position changed with the opening of the redeveloped Adelaide Oval and the relocation of AFL and SANFL football matches. The Checkside Tavern’s business is now focused on the provision of hospitality services during the week. SANFL contends that the Agreement does not suit the changed business circumstances. This information was not in dispute.

[5] SANFL has consulted with its employees and their union, United Voice.

[6] SANFL made an undertaking to its employees that certain provisions of the Agreement would be preserved. At a ballot conducted on 31 October 2016, 13 out of 16 employees voted in favour of the termination of the Agreement

[7] A hearing was conducted on 16 November 2016, United Voice opposed the application on the basis that it was contrary to the public interest based on the fact that the proposed rates of pay for Sundays and Public Holidays could result in employees being underpaid in comparison to the rates stipulated in Hospitality Industry (General) Award 2010 (HIGA).

[8] The matter was relisted on 23 November 2016. Prior to the hearing, SANFL advised that it would amend its undertaking to ensure that Sunday and Public Holidays Rates would not be less that the applicable rate in the HIGA.

[9] On 23 November 2016, United Voice advised by email that it would not oppose the termination of the Agreement provided that it was put to the employees for a further vote.

[10] At the hearing on 23 November 2016, SANFL advised it would incorporate the undertaking into the contracts of employment of the existing employees and has provided a draft contract of employment which gives effect to this commitment.

[11] United Voice submitted that in light of the revised undertaking, a further employee vote should be conducted and also that the disparity in wage rates for current employees (as per the undertaking) versus new employees (HIGA rates) would potentially result in the existing employees not being offered work as a result of the increased labour cost. The United Voice contended that these two issues would not be in the public interest.

[12] SANFL asserted that current employees had valuable experience which added to their skillset and supported their continued engagement.

[13] With respect to the amended undertaking not being put to the employees for a further review, the amended undertaking is more beneficial to the employees and I believe it is safe to rely on the support previously expressed for a lesser position than is now presented to the Commission.

[14] In considering whether the wage disparity would lead to a result which is contrary to the public interest I have had regard to the support of the variation by the current employees. In my view their considerable support lends weight to SANFL’s position that they will not be disadvantaged by varying rates of pay between employees.

[15] Pursuant to s.226 of the Act I am satisfied that the requirements for the Agreement to be terminated have been met. The termination of the Agreement is not contrary to the public interest and I have considered both the views and circumstances of the employees, United Voice and the employer.

[16] Accordingly the Agreement is terminated with effect from 8 December 2016.

COMMISSIONER

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