Wallis Refrigeration and Service Administration Pty Ltd T/A Wallis Cinemas

[2021] FWCA 6525

[2021] FWCA 6525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wallis Refrigeration and Service Administration Pty Ltd T/A Wallis Cinemas
(AG2021/8037)

WALLIS CINEMAS ENTERPRISE AGREEMENT 2016

Broadcasting and recorded entertainment industry
COMMISSIONER PLATT	ADELAIDE, 4 NOVEMBER 2021

Application for termination of the Wallis Cinemas Enterprise Agreement 2016

[1] On 26 October 2021, Wallis Refrigeration and Service Administration Pty Ltd T/A Wallis Cinemas (Wallis or the Applicant) filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act)to terminate the Wallis Cinemas Enterprise Agreement 2016 (the Agreement).

[2] The Agreement has a nominal expiry date of 10 March 2021. The Agreement has now passed its nominal expiry date.

[3] Section 226 of the Act states:

“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 if:

(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.”

[4] On 26 October 2021, my Associate sent a Notice of Listing to the Applicant for a conference to be held on 4 November 2021. The Applicant was directed to make this Notice of Listing available to all employees covered by the agreement. On the Notice of Listing, it was noted that the employees were able to provide their views in respect of the Application by emailing my Chambers, or alternatively, by attending the conference on 4 November 2021.

[5] On 3 November 2021, I received written confirmation from the Applicant that all relevant employees were sent the Notice of Listing by email, or for those who do not have an email address, delivered in person.

[6] I have received no objections from any of the relevant employees.

[7] I have considered the information provided in the application by Wallis pursuant to section 225 of the Act. This includes the Statutory Declaration by Mr Benjamin Huxtable, Chief Operations Officer for the Applicant, dated 29 September 2021. Mr Huxtable makes the following submissions in relation to the approval of termination:

•  The Agreement is outdated in comparison to the Broadcasting, Recorded Entertainment, and Cinemas Award 2020 (the Award).

•  There are flexibilities included in the Award that are not contained in the Agreement which will help the Applicant make the evolution necessary to deal with the continuing effect of the COVID-19 pandemic on the industry.

•  The Applicant will continue to pay the “Transitional Rate” that is included in the Agreement (1% above the Award rate) until it absorbed by the CPI. As such, there will be no direct financial loss felt by current staff through the loss of the “Transitional Rate”.

•  In the most recent iteration of the Award, the “CW3” classification was removed. This classification still exists in the Agreement but cannot be utilised.

•  Being covered by the Award will allow Wallis to be competitive with other cinema chains without being disadvantaged by obsolete conditions or job classifications.

[8] Upon my further review of the Agreement, I noted certain conditions in the Agreement that appeared to be more beneficial to employees than those contained in the Award. Accordingly, I sought further information from the Applicant as to how they would preserve those conditions upon termination. The Applicant provided the following undertakings:

•  Employees who currently have an entitlement to be paid at a rate 1% higher than the Award will not have their wages reduced a result of the termination of the Agreement.

•  All Supervisory Staff will be paid at the CW4 rate.

[9] On the basis of these undertakings, I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer and employees covered by the agreement and the effect that the termination will have upon them.

[10] The undertakings outlined above shall remain in force unless agreement is reached to vary those terms and/or a new enterprise agreement which modifies those terms comes into effect.

[11] A copy of this decision must be served by the Applicant upon all employees previously covered by the Agreement.

[12] In accordance with section 224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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