DECISION

Fair Work Act 2009
s.225—Enterprise agreement

TATPP T/A Hollybank Treetops Adventure
(AG2016/4802)

Tasmania
COMMISSIONER LEE	MELBOURNE, 23 SEPTEMBER 2016

Application for termination of the Hollybank Treetops Adventure Pty Ltd Tour Guide Employees Enterprise Agreement 2011.

[1] An application has been made by TATPP T/A Hollybank Treetops Adventure (the Applicant) to terminate the Hollybank Treetops Adventure Pty Ltd Tour Guide Employees Enterprise Agreement 2011 (the Agreement) under section 225 of the Fair Work Act 2009 (the Act).

[2] The Agreement is a single-enterprise agreement and has a nominal expiry date of 23 September 2015.

[3] The matter for determination is whether or not to grant the application to terminate the Agreement.

Background to the application

[4] This application was lodged with the Fair Work Commission (the Commission) on 29 July 2016. The employer’s statutory declaration filed with the application contained information relevant to the views of the employer, the effect of the termination of the employer and employees and matters which make the termination of the Agreement not contrary to public interest.

[5] On 12 August 2016 my chambers wrote to the Applicant setting out the requirements of the legislation and directed the Applicant to take the following action to enable me to obtain information on the views and circumstances of employees.

“The views and circumstances of employees are to be obtained by the employer immediately forwarding or handing to employees and posting on relevant notice boards the following notice;

An application has been made by the employer to terminate the Hollybank Treetops Adventure Pty Ltd Tour Guide Employees Enterprise Agreement 2011 (The Agreement).

The matter has been allocated to Commissioner Lee of the Fair Work Commission for determination.

If the application to terminate the Agreement is successful, your minimum employment entitlements will be regulated by the applicable modern award. Your employer has advised the Fair Work Commission that the Amusements, Events and Recreation Award 2010 covers all employees covered by the Agreement.

This may have an effect on your terms and conditions of employment.

Commissioner Lee, when determining whether to terminate the Agreement, is required to take into account the views of employees covered by the Agreement.

If you have any views about the application to terminate the Agreement, please advise the Commissioner by email at [email protected] or by calling (03) 8656 4534. Views are to be provided to the Fair Work Commission by close of business Tuesday 23 August 2016.

(Note: If you require any information or advice as to what modern award may cover you, you can contact the Fair Work Ombudsman for information at

[6] Once this course of action was followed, I directed the Applicant to provide a statutory declaration, as soon as possible after Tuesday 23 August 2016 containing advice as to how and when the notice was distributed to employees.

[7] The Applicant provided a statutory declaration dated 7 September 2016 outlining that the letter from my chambers dated 12 August 2016 was emailed to all staff members on 15 August 2016 and was printed and placed on a notice board next to the rosters on the same day. Further, that the Applicant did not receive, to date, any questions on the matter.

[8] My Chambers has not received any emails or any phone calls from any employee of the Applicant expressing any view about the application to terminate the agreement despite the posting of the notice as directed.

The law to be applied

[9] Section 225 of the Act provides:

“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;”

[10] Section 226 of the Act provides

“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.”

[11] The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s.225(a) of the Act.

[12] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied, in accordance with s.226(a) of the Act, that it is not contrary to the public interest to terminate the Agreement.

[13] In considering whether it is appropriate to terminate the Agreement, I have sought the views of the employees, considered the views of the employer and considered the circumstances, including the likely effect the termination will have on each of them.

[14] Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act.

[15] I am satisfied that it is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

[16] The termination will come into effect from 23 September 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

TATPP T/A Hollybank Treetops Adventure

[2016] FWCA 6860

23 SEPTEMBER 2016

DECISION