The UniSQ Student Guild T/A The UniSQ Student Guild
[2024] FWCA 2350
•24 JUNE 2024
| [2024] FWCA 2350 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
The UniSQ Student Guild T/A The UniSQ Student Guild
(AG2024/1697)
USQ STUDENT GUILD ENTERPRISE AGREEMENT 2017
| Amusement, events and recreation industry | |
| COMMISSIONER SIMPSON | BRISBANE, 24 JUNE 2024 |
Application for termination of the USQ Student Guild Enterprise Agreement 2017
The UniSQ Student Guild (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the USQ Student Guild Enterprise Agreement 2017 (the Agreement) after its nominal expiry date.
The Agreement is a single enterprise agreement and its nominal expiry date was 30 May 2021.
Section 225 and 226 of the Act relevantly 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;
(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.
Emeritus Professor Jane Summers, the Executive Chair of the Applicant’s board, filed a Form F24C Statutory Declaration in support of the application to terminate the Agreement.
In the Statutory Declaration submitted in support of the application, it was submitted that:
the Applicant employed in excess of 20 employees covered by three separate awards at the time the Agreement was negotiated, however, that the Applicant only employed 12 permanent employees at the time of making the Application;
the Agreement “did not provide any additional benefits or conditions to employees beyond those detailed in the three awards”;
the Agreement does not provide an opportunity for employees to obtain ‘additional individual financial benefits’ based on merit, aspiration or performance beyond those detailed in the Agreement;
it was therefore the Applicant’s intention to ‘offer and incentivise employees and reward performance’, and that the Applicant would negotiate individual contracts based on minimum standards of relevant Awards for each employee; and
it would be ‘unfair’ for employees to continue to be bound by the Agreement’s terms and be precluded from entering into ‘more advantageous employment arrangements and securing better conditions of employment’.
The Statutory Declaration also submitted other matters for my regard when considering whether to terminate the Agreement. Namely, an outline of consultation undertaken with employees that supported the Applicant’s submission that employees have been fully informed of benefits and disadvantages of terminating the Agreement, that staff had been provided opportunity to discuss the proposed Agreement termination amongst colleagues, supervisors and with the Applicant’s executive team, and that ‘no strong resistance’ had been noted across forums, in writing or in individual discussions.
The consultation actions outlined include the following:
On 23 October 2023 and 30 January 2024, the Applicant convened meetings with Agreement-covered employees to discuss the Applicant’s proposal to terminate the Agreement, instead use individual employment contracts, and to ‘provide employees with the opportunity to discuss and voice their preferences and concerns’;
On 6 November 2023, the Applicant outlined its intention to terminate the Agreement in an issue of the all-staff newsletter, a copy of which was provided to my chambers;
On 30 January 2024, at the second of two meetings convened to discuss the proposal with employees, the Applicant responded to employees’ concerns whether conditions and benefits would remain the same or improve by advising employees that:
othe proposal would not diminish current terms and conditions, with the Award to remain as ‘the determiner of their minimum conditions’; and
oit intended to incentivise benefits based on merit and performance with individual work contracts that would have more favourable employment conditions, which was reportedly well-received amongst staff.
Additional support was provided to a staff member from a non-English speaking background to ensure her understanding of the information;
The Applicant subsequently sent an email again outlining the proposal to terminate the Agreement and seeking the 12 recipients indicate by a formal written vote their preference.
oA copy of this email, dated 11 March 2024, was provided to my chambers with this Application for consideration. I note 4 business days were given to employees to indicate their vote and that the email, as described by the Applicant, provided a link to the Enterprise Agreement, and identified the three main awards that would cover the Applicant’s staff.
The Applicant noted 10 of the 12 employees covered by the Agreement voted in favour of termination.
The Applicant reported liaising with the two employees who voted against the proposed termination of the Agreement, and summarised their opposition as being ‘in relation to the maintenance of employment terms and conditions’ and being averse to change. The Applicant reported assuring these employees that award terms and conditions detailed in the Agreement would be maintained, and that no concerns were subsequently raised.
The Applicant declared not to have received any notification of intention to commence bargaining by any parties covered by the Agreement.
Directions were issued on 23 May 2024 for the Applicant to serve a copy of the F24B Application on its employees as well as a copy of the F24C Statutory Declaration and Directions. The Directions also provided that if any employee wished to be heard on the matter, they were to submit any views in relation to the Application by 3 June 2024.
The Applicant confirmed by way of email on 27 May 2024 that it had served a copy of the Application, Statutory Declaration and Directions on its employees.
To date, no material has been received from any employees of the Applicant.
On the basis of the information provided to me in the Application, and as set out above, I am satisfied that the requirements of s.226 of the Act as are relevant to this Application for termination have been met. The Applicant has nominated 31 July 2024 as a termination date, and I consider that to be an appropriate date. Accordingly, the termination will operate from 31 July 2024.
I Order accordingly.
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