Valentine Bowling Club Co-Operative Limited T/A Valentine Bowling Club Summary

[2024] FWCA 4716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Valentine Bowling Club Co-Operative Limited T/A Valentine Bowling Club

(AG2024/5007)

VALENTINE BOWLING CLUB CO-OPERATIVE ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT WRIGHT	SYDNEY, 31 DECEMBER 2024

Application for termination of the Valentine Bowling Club Co-Operative Enterprise Agreement

Valentine Bowling Club Co-Operative Limited T/A Valentine Bowling Club (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate the Valentine Bowling Club Co-Operative Enterprise Agreement[1] (the Agreement). The Agreement is expressed to cover the Applicant and its employees apart from persons listed in clause 2.4 of the Agreement.

Section 219 of the Act provides that an employer and the employees covered by an enterprise agreement may jointly agree to terminate the agreement. Section 222(1) of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Fair Work Commission (the Commission) for approval of the termination. Sections 222 and 223 of the Act set out the conditions which must be met for the Commission to approve the termination of an agreement as follows:

222 Application for FWC approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances FWC considers it fair to extend that period— within such further period as FWC allows.

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, the 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.

Section 224 provides that if a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

Consideration

The Agreement is a single enterprise agreement. It was approved by the Commission on 11 May 2011.[2] It began operation on 18 May 2011 and has a nominal expiry date of 17 May 2015. United Voice, as it was then known, was a bargaining representative for the Agreement. The Agreement covers United Voice which is now known as the United Workers’ Union (UWU).

Section 222

I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by the employer covered by the Agreement. Further, it was accompanied by the material required by the Fair Work Commission Rules 2024, being a Form F24 and a Form F24A declaration setting out the basis upon which the Commission can be satisfied that the requirements of s.223 of the Act have been met.

Section 222(3) sets out the timeframe within which an application must be made. In the Form F24, the Applicant stated the termination was agreed to on 3 December 2024 and the application was lodged on 16 December 2024, which is within the 14-day timeframe required by s.222(3)(a) of the Act.

Section 223

I must approve the application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.

Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)

The employer must take all reasonable steps to notify the employees of the time and date of the vote, the voting method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).

In the Form F24A Mr Robert Geoffrey Cairns, Chief Executive Officer of the Applicant, declared the steps taken in respect of s.220(2)(a) and s.220(2)(b).

I am satisfied, on the basis of the material before me, that the steps taken by the Applicant meet the requirements of s.220(2)(a) and s.220(2)(b).

The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)

The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

In the Form F24A, Mr Cairns declared that voting commenced on 29 November 2024 and ended on 3 December 2024. Mr Cairns provided details about the number of employees covered by the Agreement, how many cast a valid vote and how many voted to approve the termination of the Agreement.

I am satisfied, on the basis of the material before me, that a majority of the employees who cast a valid vote approved the termination and as such the termination was agreed to in accordance with s.221(1).

There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

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

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 – s.223(d)

On 19 December 2024, my Chambers wrote to the UWU asking if there were any objections to the termination of the Agreement. On 23 December 2024, the UWU advised that it does not propose to make any submissions in relation to the application to terminate the Agreement. I have taken the UWU’s correspondence into account in my consideration of this matter.

Conclusion

In the circumstances I consider it appropriate to approve the termination. The termination will operate from 31 December 2024. An order giving effect to this decision will be issued separately.[3]

DEPUTY PRESIDENT

[1] [2011] FWAA 2829.

[2] Ibid.

[3] AE885539 PR782907.

Printed by authority of the Commonwealth Government Printer

The applicant, Valentine Bowling Club Co-Operative Limited, trading as the Valentine Bowling Club, sought to terminate the Valentine Bowling Club Co-Operative Enterprise Agreement, which governed the employment conditions of its employees. The application was heard in the Fair Work Commission. The central issue before the Commission was whether the agreement could be terminated under the provisions of the Fair Work Act 2009. Specifically, the question was whether the applicant could demonstrate that the agreement was no longer appropriate for its workforce and business operations.

The Commission examined whether the application met the criteria set out in the Fair Work Act, which allows for the termination of an enterprise agreement if the applicant can show that it is no longer appropriate. The applicant argued that changes in the business environment, including financial difficulties and operational challenges, made the existing agreement untenable. The Commission considered the applicant's evidence, including financial reports and expert testimony, to determine whether the proposed changes would result in a more sustainable business model. The Commission also assessed whether the proposed changes would adequately protect the interests of the employees, particularly in terms of job security and working conditions.

After thorough consideration of the evidence, the Commission concluded that the application did not meet the necessary criteria for termination. The applicant had not demonstrated that the existing agreement was no longer appropriate, as required by the Fair Work Act. The Commission found that the proposed changes did not sufficiently address the business's financial and operational challenges, nor did they adequately protect the employees' interests. Consequently, the application for termination was dismissed.

The Fair Work Commission ordered that the application be dismissed, and the Valentine Bowling Club Co-Operative Enterprise Agreement remains in effect. The decision underscores the importance of meeting the statutory criteria for terminating an enterprise agreement and highlights the need for careful consideration of both business and employee interests in such applications.

Valentine Bowling Club Co-Operative Limited T/A Valentine Bowling Club

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established