The Star Entertainment Qld Limited T/A Dorsett Gold Coast

[2023] FWCA 1783

[2023] FWCA 1783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

The Star Entertainment Qld Limited T/A Dorsett Gold Coast

(AG2023/1713)

DORSETT GOLD COAST ENTERPRISE AGREEMENT 2021

Hospitality industry
COMMISSIONER HUNT	BRISBANE, 19 JUNE 2023

Application for termination of the Dorsett Gold Coast Enterprise Agreement 2021

1. On 2 June 203, The Star Entertainment Qld Limited T/A Dorsett Gold Coast (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Dorsett Gold Coast Enterprise Agreement 2021 (the Agreement). The Agreement has passed its nominal expiry date of 25 October 2022.

1. The application was supported by a Form F24C statutory declaration of Ms Mandy Posetti, Group Employee Relations Manager of the Employer, which declared, amongst other things, that the Employer does not have any employees engaged to work under the Agreement.

1. The United Workers’ Union (UWU) is an organisation which is covered by the Agreement. Correspondence was sent to the UWU on 8 June 2023, inviting the UWU to provide views, if any, as to whether it objects to the termination of the Agreement. On 15 June 2023, the UWU advised that it does not oppose the application on the basis that it does not, and is not likely to, cover any employees.

Legislative provisions

1. Chapter 2, Part 2-4, Division 7, Subdivision D is 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     Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)       the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)       all of the following apply:

(i)           the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)          the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)         if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)     However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)       This subsection covers a termination of the employment of an employee:

(a)       at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)       because of the insolvency or bankruptcy of the employer.

(3)       In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)       the employees (unless there are no employees covered by the agreement);

(b)       each employer;

(c)       each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)       In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)       whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)       whether bargaining for the proposed enterprise agreement is occurring; and

(c)       whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)       In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

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

1. Based on the material contained in the statutory declaration filed with the application, and in consideration of s.226(1)(b), I am satisfied that the Agreement does not, and is not likely to, cover any employees.

1. Having regard to s.226(3)(b), the views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it. The UWU, an employee organisation covered by the Agreement, does not oppose the termination of the Agreement.

1. The considerations at ss.226(2) and (4) are not relevant and I am satisfied that there are no other relevant matters to take into account in deciding whether to terminate the Agreement.

1. Having regard to s.226(1A) of the Act, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement. Accordingly, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from today, 19 June 2023.

COMMISSIONER

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