UWA Sport Pty Ltd

[2023] FWCA 545

[2023] FWCA 545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

UWA Sport Pty Ltd

(AG2022/5512)

UWA Sport Enterprise Agreement 2016

Health and welfare services
COMMISSIONER SCHNEIDER	PERTH, 21 FEBRUARY 2023

Application for termination of the UWA Sport Enterprise Agreement 2016

1. UWA Sport Pty Ltd (the Applicant) has applied under section 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate UWA Sport Enterprise Agreement 2016 (the Agreement).

Legislation

1. Section 223 of the Act sets out the conditions which, if established, require the Commission to terminate the Agreement pursuant to section 222 of the Act. Section 223 of the Act provides as follows:

“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, he 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.”

Supporting material

1. The application was supported by a Form F24A statutory declaration made by Mr Ian Fitzpatrick, General Manager of the Applicant, and a witness statement of Ms Katherine Campbell, Senior Manager of People and Culture for the Applicant.

1. The supporting materials declares that there are 207 employees covered by the Agreement. All employees were notified of the vote and 83 employees cast a valid vote. A total of 51 employees voted in support of termination.

1. The employees covered by the Agreement were invited to participate in a consultation process. During the consultation period, the Applicant held several meetings, provided the employees with comparison and explanation materials, and invited questions and feedback.

1. It is noted that some employees initially held concern over the termination and potential changes in pay. The Applicant provides evidence that it has addressed these concerns by:

“(a)        developing comprehensive Pay Scales which incorporate the minimum rates under the Fitness Award and:

i.annual leave loading for permanent employees;

ii.casual leave loading and weekend rates of pay for casual employees;

(b)       advising employees that all current rates of pay for UWA Sport Employees will be carried over as a minimum;

(c)       holding additional consultation meetings to discuss the Pay Scales and their formulation and effect.”

1. If the Agreement is terminated, the employees currently covered by the Agreement will instead be covered by the Fitness Industry Award 2020.[1]

Consideration

1. I am satisfied that the Applicant is an employer covered by the Agreement, for the purposes of the Act and can therefore make this application.

1. I am satisfied that the Applicant complied with the requirements in section 220(2) of the Act.

1. I am satisfied the termination was agreed to as prescribed by section 221(1) of the Act.

1. I am satisfied that, on assessment of the application materials, the Applicant has complied with the requirements in section 222 of the Act.

1. Having regard to section 223(d) of the Act, I note that there are no employee organisations covered by the Agreement whose views are required to be taken into account.

1. The majority of employees who cast a valid vote indicated they were in favour of the termination. The Applicant has provided evidence, and I am satisfied, that it held an extensive consultation process in which the employees were informed on the potential changes and provided the opportunity to raise concerns.

1. I am satisfied there are no other reasonable grounds for believing that the employees have not agreed to the termination.

1. The views of the employer are, undoubtedly by nature of such an application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it. The Applicant is of the view that the Agreement is no longer fit for purpose; it does not allow the flexibility the modern award provides or for the organisation to effectively operate in its industry.

1. In consideration of the material before me, including the statutory declaration and the supporting material, I am satisfied that the requirements of section 223 of the Act have been met. In accordance with section 223 of the Act, the Agreement must be terminated.

Conclusion

1. Accordingly, the application to terminate the Agreement is approved. The termination will operate from 21 February 2023.

COMMISSIONER

[1] [MA000094].

Printed by authority of the Commonwealth Government Printer

<AE423253  PR750915>