The HOYTS Corporation Pty Ltd T/A HOYTS Cinemas Australia
[2022] FWCA 2513
•26 JULY 2022
| [2022] FWCA 2513 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
The HOYTS Corporation Pty Ltd T/A HOYTS Cinemas Australia
(AG2022/2047)
Hoyts Employment Agreement [2001]
| Broadcasting and recorded entertainment industry | |
| COMMISSIONER MATHESON | SYDNEY, 26 JULY 2022 |
Application for termination of the HOYTS Employment Agreement [2001].
On 21 June 2022, the HOYTS Corporation Pty Ltd T/A HOYTS Cinemas Australia (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the HOYTS Employment Agreement [2001] (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.
The Agreement was approved by Senior Deputy President Polites on 22 June 2001, pursuant to s.170LK of the Workplace Relations Act 1996 (Cth).[1]
The nominal expiry date of the Agreement is 5 July 2004.
The Agreement is a collective agreement-based transitional instrument for the purposes of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act). Item 16 of Schedule 3 of the TPCA Act has the effect that the Agreement may be terminated pursuant to s.226 of the Act.
Legislation
The relevant provisions of the 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 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.
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.”
Consideration – s.225
Is the Applicant an employer covered by the Agreement?
Clause 3.1 of the Agreement names The HOYTS Corporation Pty Limited as a party to the Agreement. The Applicant is The HOYTS Corporation Pty Ltd T/A HOYTS Cinemas Australia and I am satisfied it is the same legal entity.
Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.
Has the Agreement passed its nominal expiry date?
Clause 4 of the Agreement provides that the nominal expiry date of the Agreement is three years from 5 July 2001, being 5 July 2004. Having considered the materials before the Commission and clause 4 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.
Consideration – s.226
Section 226(a) – Public interest
Section 226(a) of the Act requires the Commission to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.[2] The notion of public interest is distinct in nature from the interests of the parties.[3]
It is declared in the Form F24C that:
· HOYTS is transitioning from The HOYTS Employment Agreement 2004 to the Broadcasting, Recorded Entertainment and Cinemas Award 2020 (Award); and
· termination of the Agreement is not contrary to the public interest because it will result in improved minimum entitlements for employees under the Award.
In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the enterprise Agreement.
Section 226(b) – Appropriateness
On 23 June 2022, the Commission directed that the Applicant:
· serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement and file a statutory declaration confirming compliance; and
· file and serve on each employee and employee organisation covered by the Agreement an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application to terminate the Agreement.
The Applicant filed a statutory declaration confirming compliance with the above directions.
The Commission’s directions required that any employee or employee organisation covered by the Agreement who opposes the termination of the Agreement file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the Application to terminate the Agreement by 11 July 2022. The directions also noted that if any employee or employee organisation covered by the Agreement opposed the Application, the matter would be listed for hearing and the absence of opposition to the Application would result in the matter being determined on the papers.
There are no employee organisations covered by the Agreement and no employee made submissions or raised any objections to the Application.
It is declared in the Form F24C that:
· The termination of the Agreement will not disadvantage any employees as the Award and National Employment Standards (NES) have superseded much of the minimum terms and conditions of employment in the Agreement.
· Termination of the Agreement will result in improved minimum entitlements for employees under the Award.
The Agreement is of considerable age, having passed its nominal expiry date over 18 years ago. I have considered the differences between the Agreement, Award and NES and am satisfied with the explanation provided by the Applicant. In all the circumstances, and taking into account the relevant provisions in s.226(b) of the Act, I consider that it is appropriate to terminate the Agreement.
Conclusion
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 26 July 2022. An Order to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] PR905523.
[2] Re Kellogg Brown and Root, Bass Strat (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40-41.
[3] Ibid, 40.
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