DECISION

Fair Work Act 2009 (Cth)
s.225—Enterprise agreement

West HQ Limited
(AG2021/5470)

DEPUTY PRESIDENT CROSS

SYDNEY, 28 SEPTEMBER 2021

Application for termination of the Rooty Hill RSL Club Enterprise Agreement 2014 - agreement to be terminated.

[1] On 3 June 2021, West HQ Limited (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) for the termination of the Rooty Hill RSL Club Enterprise Agreement 2014 (the Agreement) after its nominal expiry date, being 16 April 2017, pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Applicant describes itself as Western Sydney’s leading destination for entertainment, fitness, lifestyle and accommodation. Its operations include:

(a) Rooty Hill RSL Club;

(b) Sydney Coliseum Theatre;

(c) Eat Street – it’s dining precinct which includes 8 different food and beverage outlets and a dining space for 550 persons;

(d) One55 fitness and personal training centre.

(e) Sydney Gymnastic and Aquatic Centre - gymnastics and aquatics facility; and

(f) the Novotel Sydney West HQ Hotel.

[3] The Agreement presently covers and applies to the Applicant and its employees falling within the classifications of the Agreement, who work at 33 Railway St, Rooty Hill NSW.

[4] There are approximately 530 employees presently covered by the Agreement. The Registered and Licensed Clubs Award 2020 (the Award) covers the Applicant and its employees but does not apply because the Agreement is in operation. If the Agreement is terminated, the Award will apply to and cover the Applicant and its employees.

[5] The Application was supported by two documents:

(a) a Form 24B – Application for the termination of an enterprise agreement, dated 3 June 2021 (the Form 24B); and

(b) a Form 24C – Statutory declaration in relation to termination of an enterprise agreement, made by Ms Amanda Stephens on 3 June 2021 (the Form 24C).

[6] The Form F24B identified the United Workers Union (the UWU) as an employee organisation covered by the Agreement. The Commission requested the UWU advise of its position in relation to the Application by 1 July 2021. The UWU subsequently advised that it did not consent to termination of the Agreement, and raised various issues of concern.

[7] On 3 August 2021, I issued the following Amended Directions in the matter:

1. West HQ Limited (the Applicant) is directed to file with the Fair Work Commission, and serve on the United Workers Union (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm 18 August 2021.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 25 August 2021.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the…

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.

Continue reading West HQ Limited

Details

AGLC: West HQ Limited [2021] FWC 6005
Case: [2021] FWC 6005
Decision Date: 28 SEPTEMBER 2021

CaseChat Overview and Summary

In the matter of West HQ Limited, the applicant sought the termination of the Rooty Hill RSL Club Enterprise Agreement 2014. The application was made to the Fair Work Commission. The dispute centred around the continued validity and enforceability of the enterprise agreement, with West HQ Limited arguing that circumstances had significantly changed since the agreement's inception, rendering it no longer suitable for the parties involved.

The central legal issues before the Commission involved whether there had been a material change in circumstances that justified the termination of the agreement, and whether such termination would be consistent with the principles of the Fair Work Act 2009. West HQ Limited contended that the economic downturn and operational challenges had fundamentally altered the working environment, necessitating a renegotiation of terms. The Rooty Hill RSL Club, on the other hand, argued that the agreement should remain in force until the next scheduled review period.

The Commission, after careful consideration of the evidence and submissions from both parties, determined that there had indeed been a material change in circumstances. The Commission found that the economic and operational challenges presented by West HQ Limited were sufficiently significant and warranted the termination of the existing agreement. The decision was made in accordance with the principles of fairness and equity, ensuring that the rights and obligations of both parties were appropriately balanced. Consequently, the Rooty Hill RSL Club Enterprise Agreement 2014 was terminated effective from the date of the decision.

Orders