Tomakin Sports And Social Club Limited

[2024] FWCA 3534

[2024] FWCA 3534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Tomakin Sports And Social Club Limited

(AG2024/3635)

TOMAKIN SPORTS AND SOCIAL CLUB ENTERPRISE AGREEMENT 2010

Licensed and registered clubs
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 8 OCTOBER 2024

Application for termination of the Tomakin Sports and Social Club Enterprise Agreement 2010

1. By an application dated 13 September 2024, Tomakin Sports and Social Club Limited (Tomakin) applied to the Fair Work Commission (Commission) to terminate the Tomakin Sports and Social Club Enterprise Agreement 2010 (Agreement) pursuant to s 222 of the Fair Work Act2009 (Cth) (Act). The nominal expiry date of the Agreement was 20 September 2013.

1. Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s 222 of the Act:

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.

1. The application was supported by a statutory declaration made by Mr Darryl Bozicevic, Chief Executive Officer of the Applicant, on 13 September 2024. Mr Bozicevic, amongst other things, declared that both of the 2 employees covered by the Agreement voted to terminate the Agreement and there were no employee organisations covered by the Agreement.

1. Contrary to the statutory declaration provided by Mr Bozicevic, the enterprise agreement approval decision issued by Commissioner McKenna on 13 September 2010[1] states that the Agreement covers the Liquor and Hospitality Division of the Liquor Hospitality and Miscellaneous Union (as the United Workers’ Union was then known). On 23 September 2024, the United Workers' Union was given the opportunity to file any material that they wished to provide in relation to the applicant’s application to terminate the Agreement. On 25 September 2024, the United Workers’ Union indicated that they did not propose to make any submissions in relation to the applicant’s application to terminate the Agreement.

1. Based on the material that is before the Commission, including the statutory declaration made by Mr Bozicevic on 13 September 2024, I am satisfied that the requirements of s 223 of the Act have been met, including that I consider it is appropriate to approve the termination of the Agreement. The employees to whom the Agreement applies will have their terms and conditions of employment governed by the Milton Ulladulla Ex-Servos Club Enterprise Agreement 2010 after the termination of the Agreement takes effect.

1. Because I am satisfied as to each of the matters referred to in s 223(a) to (d) of the Act, I must approve the termination of the Agreement.

1. In accordance with s 224 of the Act, the termination of the Agreement will come into effect from midnight on Friday, 11 October 2024. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

[1] Tomakin Sports and Social Club Ltd [2010] FWAA 7158

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