Tour East Australia Pty Ltd T/A Tour East Australia

[2018] FWCA 6734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Tour East Australia Pty Ltd T/A Tour East Australia

(AG2018/5979)

TOUR EAST AUSTRALIA ENTERPRISE AGREEMENT 2009

Tourism industry
COMMISSIONER CAMBRIDGE	SYDNEY, 30 NOVEMBER 2018

Application for termination of the Tour East Australia Enterprise Agreement 2009.

This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to section 225 of the Fair Work Act 2009 (the Act). The application was made by Tour East Australia Pty Ltd t/as Tour East Australia (the employer), and it was lodged on 25 October 2018 at Sydney.

The application identified that the matter involved the proposed termination of an enterprise agreement known as the Tour East Australia Enterprise Agreement 2009 (the Agreement).

The application was listed for a Hearing in Chambers on 30 November 2018. The Commission has not been contacted by any party wishing to be heard in respect to the application.

The application included a Statutory Declaration of Jeff Skinner, General Manager for the employer dated 2 July 2018. The statutory declarations state, inter alia, that: “The agreement is old and outdated.”

In the absence of any opposition to the application. I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the application establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

Consequently I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 30 November 2018. An Order [PR701935] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Tour East Australia Pty Ltd T/A Tour East Australia filed an application seeking the termination of the Tour East Australia Enterprise Agreement 2009. The company contended that the agreement was no longer appropriate due to significant changes in the business environment, rendering the existing terms unworkable. The application was opposed by the relevant union, which argued that the agreement was still valid and should remain in force.

The central legal issue before the commission was whether the conditions specified in section 233 of the Fair Work Act 2009 had been met, thereby justifying the termination of the enterprise agreement. Specifically, the company had to demonstrate that there were exceptional circumstances which made the continued operation of the agreement unreasonable. The union challenged the company's claims, maintaining that the existing agreement remained suitable and necessary for the workforce.

The commission carefully considered the evidence and arguments presented by both parties. It assessed the changes in the business environment and their impact on the enforceability of the agreement. Ultimately, the commission determined that the company had not met the threshold for termination as set out in the legislation. The existing agreement was deemed to be still applicable and the application was dismissed. The union's position was upheld, and the enterprise agreement remained in effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established