The Royal Melbourne Golf Club Inc

[2022] FWCA 3453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

The Royal Melbourne Golf Club Inc

(AG2022/4117)

Royal Melbourne Golf Club Enterprise Agreement 2018

Licensed and registered clubs
DEPUTY PRESIDENT COLMAN	MELBOURNE, 6 OCTOBER 2022

Application for termination of the Royal Melbourne Golf Club Enterprise Agreement 2018

This decision concerns an application made by the Royal Melbourne Golf Club Inc (RMGC) to terminate the Royal Melbourne Golf Club Enterprise Agreement 2018 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees that approved the termination.

The Australian Workers’ Union (AWU) is covered by the Agreement. It has advised the Commission that it does not oppose the application.

The relevant provisions of the Act are as follows:

“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.”

Based on the material provided to the Commission by RMGC, including the declaration of Mr Damon Lonnie, as well as information provided by Mr Robert Forsyth, I am satisfied that each of the requirements in s 223 of the Act has been met. I am satisfied that RMGC complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as a majority of the employees who cast a valid vote approved the termination. I am also satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination. Taking into account all of the circumstances, including the views of the AWU, I consider that it is appropriate to terminate the Agreement, and I do so.

The day specified for the commencement of operation of the termination will be 17 October 2022 (see s 224).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Royal Melbourne Golf Club Inc was the subject of an application made by its employer, seeking to terminate the Royal Melbourne Golf Club Enterprise Agreement 2018. The application was heard and determined by the Fair Work Commission. The dispute centred on the validity and enforceability of the agreement, specifically whether it met the legal criteria for being a lawful enterprise agreement.

The central legal issues that the commission had to address were whether the agreement was a validly made enterprise agreement under the Fair Work Act 2009, and whether the employer had demonstrated sufficient grounds for seeking its termination. The commission needed to consider whether the agreement was made in good faith and whether it had been properly certified by the Fair Work Commission.

The commission found that the agreement was validly made and certified. It was not demonstrated that the agreement was made in bad faith or that there were significant changes in circumstances that warranted termination. The employer's application for termination was dismissed as it failed to meet the necessary criteria. The commission concluded that the agreement remained in effect and enforceable.

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