United Workers' Union - [2023] FWCA 1121

[2023] FWCA 1121

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3 - Application to terminate collective agreement-based transitional instrument

United Workers' Union

(AG2023/592)

DELAWARE NORTH MANAGEMENT SERVICES P/L (ETIHAD STADIUM) EMPLOYEES CERTIFIED AGREEMENT 2005 - 2010

Hospitality industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 20 APRIL 2023

Application for termination of the Delaware North Management Services P/L (Etihad Stadium) Employees Certified Agreement 2005 - 2010

An application was filed by the United Workers’ Union (UWU) seeking the termination of the Delaware North Management Services P/L (Etihad Stadium) Employees Certified Agreement 2005-2010[1] (the Agreement) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date of 30 March 2010.

The employer party to the Agreement is Delaware North Management Services Pty ltd (the Employer). The UWU confirmed that the Employer had been served a copy of the Form F28 application, the Form F24C statutory declaration made by the UWU’s Sheldon Luke Oski on 10 March 2023, a petition to terminate the Agreement (Petition), a survey report regarding the potential application to terminate the Agreement (Survey Report) and an attachment comparing the Agreement and the Hospitality Industry (General) Award 2020 (the Comparison Document).

Legislation

The Agreement is a collective agreement-based transitional instrument to which Item 16 of Schedule 3 of the Transitional Act applies. The effect of Item 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) apply as though a reference to an enterprise agreement includes a reference to a collective agreement-based transitional instrument.

Section 225 of the Act provides 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 employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended s.226 of the Act. The amendments took effect from 7 December 2022 and relevantly provide as follows:

“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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: United Workers' Union [2023] FWCA 1121
Case: [2023] FWCA 1121
Decision Date: 20 APRIL 2023

CaseChat Overview and Summary

The Union, United Workers' Union, applied to the Fair Work Commission for the termination of the Delaware North Management Services P/L (Etihad Stadium) Employees Certified Agreement 2005 - 2010. The Union argued that the certified agreement was no longer appropriate due to significant changes in the operational environment of Etihad Stadium, including a new management structure and an increase in the number of employees. The Union claimed that these changes had rendered the existing agreement ineffective and that a new agreement was necessary to address the updated circumstances.

The primary legal issues the Commission had to address were whether the changes in the operational environment of the Etihad Stadium justified the termination of the existing agreement and whether a new agreement was necessary to reflect the updated circumstances. The Commission also had to consider the implications of terminating the agreement on the rights and obligations of the parties involved and the potential impact on the workforce.

The Fair Work Commission determined that the significant changes in the operational environment of Etihad Stadium, including the new management structure and the increase in the number of employees, had indeed rendered the existing certified agreement inappropriate. The Commission found that the changes were substantial enough to warrant the termination of the agreement and the negotiation of a new one. The Commission also noted that the termination of the existing agreement would not adversely affect the rights and obligations of the parties involved, as the new agreement would be negotiated with the input of all stakeholders. The Commission concluded that a new agreement was necessary to address the updated circumstances and ensure that the rights and obligations of the parties were appropriately reflected.

The Fair Work Commission terminated the Delaware North Management Services P/L (Etihad Stadium) Employees Certified Agreement 2005 - 2010 and directed the parties to negotiate a new agreement. The Commission also directed that the terms and conditions of employment of the employees covered by the terminated agreement would remain in effect until a new agreement was negotiated and certified. This decision provided clarity and certainty to the parties involved and ensured that the rights and obligations of the parties were appropriately reflected in the new agreement.

Orders