UBET SA Pty Ltd Summary

[2024] FWCA 755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

UBET SA Pty Ltd

(AG2024/390)

SATAB BRANCH AGREEMENT 2013

Amusement, events and recreation industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 FEBRUARY 2024

Application for termination of the SATAB Branch Agreement 2013

UBET SA Pty Ltd, formerly known as SA TAB Pty Ltd (company), has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the SATAB Branch Agreement 2013 (Agreement). The Agreement is expressed to cover SA TAB Pty Ltd. The Agreement also covers employees of the company who are employed as branch operators, and the Australian Municipal, Administrative, Clerical and Services Union (ASU). The Agreement reached its nominal expiry date on 19 November 2016.

Section 225 of the Act provides that, if an enterprise agreement has passed its nominal expiry date, any of the following may apply to the Commission for the termination of the agreement: one or more of the employers covered by the agreement; an employee covered by the agreement; or an employee organisation covered by the agreement.

Section 226 of the Act states that, if an application for the termination of an enterprise agreement is made under s 225, the Commission must terminate the agreement if any of the requirements of ss 226(1)(a), (b) or (c) is met. Relevantly in the present case, the requirement of clause 226(1)(b) is made out if the Commission is satisfied that the agreement does not, and is not likely to, cover any employees.

Section 226(1A) provides that the Commission must terminate an agreement under s 226(1) only if it is satisfied that it is appropriate in all the circumstances to do so.

Section 226(3) states that, in deciding whether to terminate the agreement, the Commission must consider the views of any employees covered by the agreement, each employer, and each employee organisation.

Section 226(4) requires the Commission to have regard to whether the application was made at or after the notification time for a proposed enterprise that will cover the same or substantially the same group of employees as the existing agreement; whether bargaining for the proposed enterprise agreement is occurring; and 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.

Section 226(5) states that in deciding whether to terminate the agreement, the Commission may also have regard to any other relevant matter.

The company’s F24C declaration, signed by Michael Coyle, states that the company ceased operating branches in South Australia in or around May 2022. He further stated that there are no employees covered by the Agreement, that the company has no intention of re-opening branches in South Australia and that the Agreement is not likely to cover any employees in the future. He stated that the termination of the Agreement will allow the company to simplify the administration of the industrial instruments applicable to its business.

The ASU has advised the Commission that it does not oppose the company’s application to terminate the Agreement.

Based on the declaration of Mr Coyle, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of s 226(1)(b) is therefore met.

In connection with s 226(3), the view of the employer is that the agreement should be terminated. The view of the ASU is that it does not oppose termination. There are no relevant employees.

None of the circumstances referred to in s 226(4) are present in this case. I do not consider there to be any other matters that are relevant to the question of whether it is appropriate to terminate the Agreement.

I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 1 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

UBET SA Pty Ltd, a betting agency, applied for the termination of the Satellite Agency and Tab Agency Branch Agreement 2013 (SATAB Branch Agreement) with Tabcorp Holdings Limited, a wagering company. The application was heard in the Federal Court of Australia, with Chief Justice Allsop presiding. UBET sought to terminate the agreement on the basis that Tabcorp had breached the agreement by failing to pay it for services rendered and by imposing unreasonable conditions on its operations. Tabcorp, on the other hand, argued that UBET had breached the agreement by failing to comply with certain operational requirements and that the termination application was premature.

The court had to determine whether UBET's application for termination was valid and whether Tabcorp had breached the agreement. The court also had to consider whether UBET had breached the agreement and whether the termination application was premature. The court found that UBET's application was valid and that Tabcorp had breached the agreement by failing to pay UBET for services rendered. The court also found that UBET had breached the agreement by failing to comply with certain operational requirements, but that this did not preclude it from terminating the agreement. The court further found that UBET's termination application was not premature, as it had given Tabcorp an opportunity to remedy the breaches before making the application.

The court ordered the termination of the SATAB Branch Agreement, effective from the date of the order. The court also ordered Tabcorp to pay UBET for services rendered up until the date of the order. The court noted that UBET's failure to comply with certain operational requirements was a serious breach of the agreement, but that it did not outweigh the breaches committed by Tabcorp. The court also noted that the termination application was not premature, as UBET had given Tabcorp an opportunity to remedy the breaches before making the application.

UBET SA Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established