Springwood Bowls and Recreation Club t/as Springwood Sports Club

[2016] FWCA 7858

[2016] FWCA 7858

FAIR WORK COMMISSION

DECISION

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

Springwood Bowls and Recreation Club t/as Springwood Sports Club
(AG2016/6633)

SPRINGWOOD SPORTS CLUB EMPLOYEES ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 25 NOVEMBER 2016

Springwood Sports Club Employees Enterprise Agreement .

[1] This is an application, filed by Springwood Sports Bowls and Recreation Club t/as Springwood Sports Club pursuant to s 222 of the Fair Work Act 2009 (the ‘Act’), which seeks to terminate the Springwood Sports Club Employees Enterprise Agreement [AE885225] (the ‘Agreement’).

[2] The relevant provisions of the Act governing applications of this kind are set out at ss 220-224 as follows:

‘220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement
(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement
(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval
(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made
(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.


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.


224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.’

[3] In a Statutory Declaration in support of the termination of the Agreement (Form F24A), Ms G Russell, Administrator, explained that the employees were informed of the Company’s intention by way of a presentation made to staff on 17 October 2016. The employees were notified in a written notice on 10 October 2016, that a vote for approval of the termination of the Agreement would be conducted between 18 October to 21 October 2016. This was also explained to the employees during the presentation on 17 October 2016. I am satisfied that the applicant gave the employees covered by the Agreement a reasonable opportunity to consider whether they supported the termination of the Agreement (s 220(2)). In a secret ballot, all 25 employees who cast a valid vote agreed to terminate the Agreement, satisfying s 221(1) of the Act. For the sake of completeness, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination of the Agreement (s 223(c)).

[4] In a hearing of the application on 15 November 2016, Mr M Ushakoff of the Registered Clubs Association of NSW appeared for the applicant with Ms N Watkins of the Club and Mr D Holder appeared for the Union. Ms Ushakoff said that the application to terminate the Agreement arose partly from the financial difficulties the applicant is experiencing and also from the applicant’s decision to amalgamate with another club, the Mingara Recreation Club Limited which is covered by another agreement, the Mingara Registered Clubs Enterprise Agreement 2013 [AE405446] (the ‘Mingara Agreement’). Mr Ushakoff submitted that the Mingara Agreement is more beneficial for employees than the Springwood Agreement. While this raised some questions as to the logic of being covered by it, given the stated financial difficulties, he submitted that this was the preference of the Mingara Recreation Club. Mr Holder supported the termination of the Agreement. Having taken into account the views of the employees as expressed in the vote, the views of the applicant and the views of the Union, I am satisfied that it is appropriate to approve the termination of the Agreement. I am satisfied that all of the requirements of the Act, in particular, ss 220, 221, 222 and 223, have been met. Accordingly, the Springwood Sports Club Employees Enterprise will be terminated. Pursuant to s 224 of the Act, and by consent, the termination is to take effect on and from 27 November 2016. An order to that effect will accompany the publication of this decision.

DEPUTY PRESIDENT

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