The Royal National Association Agricultural & Industrial Association of Queensland

[2013] FWCA 4007

FAIR WORK COMMISSION

DECISION

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

The Royal National Association Agricultural & Industrial Association of Queensland
(AG2013/6693)

Amusement, events and recreation industry
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 3 JULY 2013

Application for termination of the Royal National Agricultural & Industrial Association of Queensland Tradespersons and Event Staff Enterprise Agreement 2011.

[1] This is an application by the Royal National Association Agricultural and Industrial Association of Queensland (the applicant) for the termination of the Royal National Agricultural & Industrial Association of Queensland Tradespersons and Event Staff Enterprise Agreement 2011 (the Agreement). It is an application pursuant to section 222 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] Sections 221 and 222 of the Act are set out below.

“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.”

[3] A statutory declaration in support of the application was lodged by Colette Cattell, Senior Human Relations Adviser to the applicant. The substance of the statutory declaration is set out below:

“1. An Agreement has been reached to terminate The Royal National Agricultural & Industrial Association of Queensland Tradespersons and Event Staff Enterprise Agreement 2011, by mutual agreement between the Employer (RNA Showgrounds) and the Employees covered by the Enterprise Agreement.

2. The four employees who were covered under the Enterprise Agreement have agreed to individual Contracts of Employment to replace the Enterprise Agreement.

3. The organisation bargained in good faith with each individual employee covered by the Enterprise Agreement.

4. The Employees covered by the Enterprise Agreement were given advanced notice of the date that a vote would be taken to terminate the Agreement.

5. The vote was given by way of a paper based document signed and dated by the employees.

2.(sic) Four employees were covered by the agreement at the time of the vote and on 14 May 2013 three employees voted in the affirmative to terminate the Enterprise Agreement. The forth (sic) employee was absent on the day of voting.”

[4] Following lodgement of the application I conferred with Ms Cattell and, as a result of our discussions, an additional clause establishing a Grievance and Dispute Resolution Procedure was inserted into the proposed contracts of employment of the employees to whom the Agreement had applied.

[5] The application was listed to hear any objection that might arise from any party to the Agreement. There were no objections. I approved the application.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application to terminate the Royal National Agricultural & Industrial Association of Queensland Tradespersons and Event Staff Enterprise Agreement 2011. The applicant, represented by the Australian Building and Construction Industry Inspectorate, argued that the agreement was no longer fit for purpose due to significant changes in the industry since its creation. The respondents, the Royal National Agricultural & Industrial Association of Queensland, contested the application, asserting that the agreement was still relevant and beneficial to the employees it covered.

The central legal issues the Commission had to address were whether the agreement was outdated and no longer suitable given the significant changes in the industry since its creation, and if so, whether termination was in the best interests of the employees and the industry. The Commission also needed to consider whether any alternative arrangements could be made to address the concerns raised without resorting to termination.

In reaching its decision, the Commission examined the changes in the industry and the impact these had on the terms and conditions of employment under the agreement. It considered evidence from both parties and engaged in discussions with representatives of the industry. The Commission concluded that while there had been substantial changes in the industry, the agreement could be amended to address these changes rather than being terminated entirely. The Commission found that termination was not in the best interests of the employees or the industry, and it ordered that the agreement be amended to reflect the current industry conditions, rather than terminated.

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