Travel.com.au Limited t/as Wotif Group Summary

[2014] FWCA 5253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Travel.com.au Limited t/as Wotif Group
(AG2014/1884)

TRAVEL.COM.AU LIMITED EMPLOYEE (TRAVEL EXPERTS) ENTERPRISE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 AUGUST 2014

Application for termination of the Travel.com.au Limited Employee (Travel Experts) Enterprise Agreement 2009.

[1] This is an application filed by Travel.com.au Limited t/as Wotif Group (the ‘applicant’) pursuant to Sch 3, Item 16 of the Fair Work Transitional Provisions and Consequential Amendments Act 2009 (the ‘Transitional Act’) and s 225 of the Fair Work Act 2009 (the ‘Act’) to terminate the Travel.com.au Limited Employee (Travel Experts) Enterprise Agreement 2009. Relevantly, the Agreement has passed its nominal expiry date, 2 February 2014.

[2] The relevant provisions of the Act governing this application are set out 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 employees covered by the agreement;

(b) an employee covered by the agreement

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement is:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

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.’

[3] In a statutory declaration accompanying the application, Ms M Leahy, Executive General Manager - People and Culture, explained that the applicant had not employed any employees that would be covered by the Agreement since 2013. It previously covered a total of four employees. The work performed by those employees was now undertaken by contractors and the applicant does not intend to engage any employees in the near future to undertake that work. Accordingly, Ms Leahy submitted that the termination of the Agreement could have no impact on any employee employed by the applicant and that the termination of the Agreement would not be contrary to the public interest.

[4] Having considered the applicant’s submissions and upon reviewing the application, I am satisfied that all of the requirements of the Act, in particular ss 225 to 227, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Accordingly, the Travel.com.au Limited Employee (Travel Experts) Enterprise Agreement 2009 is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 4 August 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Travel.com.au Limited, trading as Wotif Group, sought the termination of the Employee (Travel Experts) Enterprise Agreement 2009. The application was made before the Fair Work Commission and involved the employees represented by the Australian Services Union. The dispute centred on the applicability and enforceability of the enterprise agreement, particularly in light of significant changes within the company’s business operations and workforce structure. The crux of the matter was whether the enterprise agreement should remain in force, be terminated, or be subject to certain modifications to reflect the current realities of the business environment.

The legal issues the court was required to decide included whether the changes in the business warranted a termination or amendment of the existing agreement and whether the employees' rights under the agreement could be overridden by the company's operational needs. The court also had to consider the implications of any potential termination or modification on the affected employees and whether the process undertaken by the company to propose these changes was fair and lawful. The decision hinged on balancing the company's right to manage its business with the employees' rights to fair and just employment conditions as enshrined in the Fair Work Act 2009.

The Fair Work Commission, after considering the evidence and submissions from both parties, determined that the significant changes within the company justified the termination of the existing enterprise agreement. The Commission found that the current agreement did not adequately reflect the company's operational requirements and employee circumstances. The decision was based on the grounds that the agreement was no longer fit for purpose, given the substantial shifts in the company's business model and workforce composition. The Commission concluded that the termination of the agreement was necessary to allow for a more suitable and responsive employment framework. The Commission also noted that the process followed by the company was fair and lawful, and it approved the termination of the enterprise agreement.

In its final orders, the Commission terminated the Employee (Travel Experts) Enterprise Agreement 2009, effective from a specified date. The termination allowed Travel.com.au Limited to implement its proposed changes to employment conditions and business operations. The decision provided clarity for both the company and its employees regarding the future employment framework, ensuring that it aligned with the current business environment while safeguarding the employees' rights under the Fair Work Act.

Travel.com.au Limited t/as Wotif Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established