West HQ Limited
[2021] FWC 6005
•28 SEPTEMBER 2021
| [2021] FWC 6005 |
| FAIR WORK COMMISSION |
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 Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 1 September 2021.
[8] The parties complied with the above Directions. In particular:
(a) On 18 August 2021, the Applicant filed a document titled “Applicant’s Outline of Submissions” (the Applicant’s Submission) together with a Statement of Amanda Stephens (the Stephens Statement);
(b) On 25 August 2021, the UWU filed a document titled “Respondent’s Outline of Submissions” (the Respondent’s Submission); and
(c) On 1 September 2021, the Applicant filed a document titled “Applicant’s Outline of Submissions in Reply” (the Applicant’s Reply Submission) together with a Supplementary Statement of Amanda Stephens (the Stephens Reply Statement).
[9] The Application was heard on 8 September 2021 (the Hearing). The evidence of Ms Stephens was admitted without cross-examination, and the parties orally supplemented their written submissions.
The Applicant’s Case
[10] In the Form 24C Statutory Declaration, Ms Stephens deposed as to the grounds and reasons for the Application as follows:
Grounds and Reasons
9. On 31 May 2021, the Applicant gave notice to all employees covered by the Agreement of its intention to apply to the Fair Work Commission to terminate the Agreement.
10. The Applicant will recognise the key entitlements under the Agreement that are more beneficial than the corresponding Award conditions and/or not covered by the Award in the event the Application is approved, including an enhanced redundancy pay provisions for existing employees. The Applicant will provide employees with a contract variation letter to preserve those terms and conditions from the Agreement as terms of the employment with the Applicant.
11. There are a number of additional entitlements in the Award that are not listed in the Agreement that employees will have the benefit of if the Application is approved, including but not limited to shift penalties for those employees who work night shift during the week and on the weekend.
Impact on Enterprise Bargaining Power:
12. If the Agreement is terminated, there will be no substantive change to bargaining power between the Applicant and the Employees.
13. The Agreement’s nominal expiry date was over 4 years ago and there have been no attempts from Employees to negotiate a new Agreement.
14. If the Agreement is terminated the Employees and any representatives would retain the right to bargain with the Applicant for a new Agreement if they so desire.
Impact on Employment Levels:
15. If the EA is terminated, it will have no detrimental impact of the number of employees or positions in the Applicant’s business.
16. The Applicant will not reduce the number of positions, total hours of work in the business or for any particular employee as a result of the termination of the Agreement.
Maintenance of Industrial Standards:
17. The Award provides the safety net of minimum conditions of employment for the Employees
18. If the Agreement is terminated, certain more beneficial terms and conditions of the Agreement will be maintained for all existing employees. The employees would also have the benefit of the minimum terms and conditions in the Award.
19. The termination of the Agreement will not result in a reduction of take-home pay or overall employment entitlements of employees who are currently covered by the Agreement.
[11] In the Stephens Statement, Ms Stephens noted that a key consideration in the Applicant's decision to revert to Award coverage is to ensure that its employees are remunerated appropriately consistent with established industry standards. Ms Stephens noted that moving to the Award rates and penalties structure would provide an incentive to those employees who work night shifts during the week as the Award provides shift penalties for “late and early work" to employees working afternoon / evening shifts and night shifts. Under the terms of the Agreement, employees are paid the same rate for all shifts performed Monday to Friday, regardless of their starting and finishing times.
[12] Indeed, in the Hearing the Applicant candidly submitted that it made no submission that any difficulties arose from the operation of the Agreement. It was simply that the Applicant had chosen the different path of the Award as preferrable because the Modern Award review and Award changes over time had made it a more progressive and dynamic document than the Agreement.
[13] The Applicant has maintained pay parity with the Award despite having no obligation to do so. Since the nominal expiry of the Agreement in 2017, the Applicant has granted wage increases to employees (initially passing on CPI increases), which resulted in base rates of pay being above Award. However, the Applicant is faced with a position where it needs to maintain parity with the Award minimum hourly rates, but under the broader hours of work, terms, conditions and payment structure under the Agreement, which is inconsistent with the Award.
[14] The Applicant intends, if the Agreement is terminated, to maintain certain Agreement provisions through the use of contract variation letters which will be issued to current employees. Those on-going contractual guarantees to the identified Agreement entitlements are not time limited. If the Application is approved, the Applicant would preserve the following Agreement entitlements:
a. current above-Award rates of pay;
b. additional loadings for some long term employees;
c. higher redundancy pay scale and higher rate of payment for redundancy;
d. safe family support leave;
e. higher first aid allowance;
f. free meals, soft drink, tea and coffee;
g. salary sacrifice arrangements;
h. 2014 Agreement criteria for the additional week of annual leave for shiftworkers; and
i. additional Rostered Days Off for pre May 2010 employees.
[15] The Applicant has also amended its current standard employment agreements for new employees, to provide such new employees with a contractual right to the following Agreement entitlements:
a. safe family support leave;
b. salary sacrifice arrangements;
c. 2014 Agreement criteria for the additional week of annual leave for shiftworkers and
d. free meals and tea and coffee.
[16] Ms Stephens noted that on 31 May 2021, she sent an email to all employees covered by the Agreement to advise of the decision by the Applicant to apply to the Commission to terminate the Agreement. She also noted that correspondence was sent to the UWU. That correspondence attached a memorandum and summary of frequently asked questions document that set out the relevant information relating to the decision to apply to the Commission, the Application process, and a confirmation that certain more beneficial provisions of the Agreement would be maintained by the Applicant. No employee has since contacted the Applicant to express a view about the Application.
[17] Ms Stephens deposed that since the Agreement passed its nominal expiry in March 2017, the UWU has not contacted the Applicant to enquire about bargaining for a new enterprise agreement.
[18] The Applicant submitted it was entitled to make the Application as the Agreement had passed its nominal expiry date. The only matters for determination are the matters set out at s.226 of the Act, namely whether the Commission:
(a) is satisfied that it is not contrary to the public interest to terminate the Agreement; and
(b) considers that it is appropriate to terminate the Agreement taking into account all the circumstances including:
(i) the views of the Employees, the Applicant and the UWU; and
(ii) the circumstances of those Employees, the Applicant and the UWU including the likely effect that the termination will have on each of them.
[19] The Applicant submitted that if the Commission was to terminate the Agreement, it would not be contrary to the public interest as to do so as it would not have any material effect on the objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.
[20] The Applicant submitted that the core objects of the Act would not be affected by termination of the Agreement. Further, the Applicant has made a guarantee to employees that they will continue to receive a number of Agreement entitlements if the Agreement is terminated.
[21] Regarding the views of the Employees, the Applicant and the UWU, the Applicant submitted:
(a) No employees have raised any concerns or queries in relation to the Applicant’s Application to terminate the Agreement since first being advised on 31 May 2021;
(b) While the Applicant understands the UWU opposes the Application, in the absence of any witness statements and/or submissions from the UWU, the Applicant was not in a position to comment further; and
(c) The Applicant supports the Application, for the reasons outlined in its submissions and the reasons set out in the evidence of Ms Stephens.
The UWU’s Case
[22] The UWU opposes termination of the Agreement. There are two essential grounds for such opposition, being:
(a) The Applicant has applied to terminate the Agreement, without the support of its employees, or the UWU; and
(b) The Application to terminate the Agreement represents a net loss of conditions for a significant body of the staff at the Applicant.
(a) Views of Employees and the UWU
[23] The UWU noted that s.226(b)(i) and (ii) require that the Commission must take into account the views of employees, and their circumstances and likely effect that terminating the Agreement will have on those employees. Those provisions also require a similar consideration of the views and circumstances of the UWU.
[24] The UWU noted that no evidence from a single employee supporting the Application has been brought by the Applicant. The UWU accepted in the Hearing that the Applicant had written “fairly thoroughly” regarding their plans to employees, and accepted that employees had not responded to the Applicant. However, the UWU noted that the Applicant is currently in an active COVID-19 lockdown area, and not available to the public or most employees.
[25] The UWU submitted that due to the lockdown it had been very difficult for the UWU to speak with members jointly, and alone. The UWU submitted, without any supporting evidence, that “In talking by telephone to members, we have uncovered some who are negative about terminating the Agreement, and asked whether they’d be prepared to make a statement for the Commission we have been told they don’t want to because I (sic) think I’ll be subject to victimisation by the Club.”
[26] The UWU observed that the lockdown that is in progress appears likely to be in place until November 2021, and that time-frame provides an opportunity for the Commission to find out for itself the views of those employees. The UWU proposed the following course of action:
The Applicant can provide a list of employees to the Commission and the Commission could email the employees of the Club, with a list of the gains and losses a termination would deliver and asking their views of the proposed termination. Responses could be made by email solely to the Commission.
[27] In the Hearing the UWU noted that 56% of the Applicant’s workforce were casual, and from vulnerable groupings, whose needs should be taken into account.
[28] Regarding the involvement of the Commission in ascertaining the views of employees, subsequent to the Hearing the UWU provided a reference to a decision of Deputy President Hamberger in Menzies International [Aust] Pty Ltd T/A Menzies International, 1 (Menzies).
(b) Net Loss of Conditions
[29] While the UWU conceded that the Applicant had identified areas where the benefits of the Award exceeded the Agreement, the UWU submitted that it had identified the areas of disadvantage or where the benefits identified by the Applicant were “misleading.” The UWU submitted that all employees should be aware of the following matters, in addition to the benefits of the Award over the Agreement, in a single document prepared by the parties to the Agreement and supplied to the Commission. The areas of disadvantage/misleading benefit identification involved:
(a) Additional annual leave for shiftworkers;
(b) Annual leave loading;
(c) Paid ten minute tea breaks;
(d) Free meals and tea and coffee;
(e) Rate of pay for Christmas day;
(f) Pay frequency;
(g) Shoes allowance;
(h) Rates of pay for employees at classification Levels 2B, 3B and 5B;
(i) The disputes procedure;
(j) Redundancy pay; and
(k) Safe family support leave
The Applicant’s Reply
[30] The Applicant asserted that the UWU Submissions appeared to confuse/conflate the exercise that Commission is to undertake pursuant to s 226 of Act as a process that is the same as, or analogous to, the better off overall test (BOOT) in the context of an enterprise agreement approval application pursuant to s 193 of the FW Act.
[31] The sole focus of the matters identified in the UWU Submissions relate to certain specified items in the Agreement which are not contained in the Award. However, unlike the BOOT in its traditional form, the UWU’s Submissions do not make any reference to the terms of the Award which will apply to employees which are more favourable than the corresponding terms in the Agreement. Additionally, the Applicant disputed the interpretations advanced by the UWU regarding the dispute resolution, redundancy and safe family support leave provisions.
[32] Regarding the views of employees covered by the Agreement, the Applicant submitted that there is no obligation on an applicant party seeking that the Commission approve an application pursuant to s 225 to ensure that any other party who has an interest in the application and standing to present their views of the application to the Commission does in fact present such a view.
[33] The Applicant submitted the steps that it has taken to inform employees are more than sufficient in that the fact of the Application, and the Applicant’s reasons for pursuing the Application, have been made clear to employees. Where an application to terminate an enterprise agreement comes before the Commission for determination with very little, or no, input from one (or more) of the parties who may otherwise have an interest in the proceedings, the Commission should consider the views of the non-participating party as a neutral consideration. 2
Consideration
[34] The terms of Sections 225 to 227 of the Act are:
“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.
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under s.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.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”
[35] The Application is competently before the Commission in that the Agreement has passed its nominal expiry date, the Applicant is entitled to make the Application as an employer covered by the Agreement (s.225(a)), and the UWU is an employee organisation covered by the Agreement (s.225(c)).
(a) s.226(a) - Public interest
[36] Section 226(a) brings into focus the question of the public interest. In Kellogg Brown & Root Pty Ltd and others v Esso Australia Pty Ltd, 3 (Kellogg Brown), the Full Bench of the Australian Industrial Relations Commission (AIRC) said (at [23]):
“The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them.”
[37] The Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd, 4 (Aurizon) relied upon various passages from Kellogg Brown, and concluded that it cannot be expected that the terms and conditions of an agreement will continue unaltered in perpetuity after it has passed its expiry date, because the Act contemplates the terms and conditions of an agreement may be altered by making a new agreement or by terminating the existing agreement.5 Further, the Act clearly contemplates an agreement that still applies to employees being terminated and prescribes a safety net upon termination in such circumstances. The prescribed safety net is not a prior agreement and nor are undertakings mandatory. Rather, the prescribed safety net is the relevant modern award created during the Award Modernisation process and the National Employment Standards (NES).6
[38] In this Application, the termination of the Agreement would not lead to an absence of award coverage for the employees as the Award provides for “proper industrial standards” within the meaning given to that term by Kellogg Brown. Further, and significantly, the Applicant has clearly indicated that it will maintain many beneficial provisions of the Agreement for employees by way of contract variation agreements for current employees, and standard employment agreements for new employees. There is no time limitation on the maintenance of those provisions, with such provisions remaining until new contracts are entered into or employment ceases.
[39] I do not consider that it is contrary to the public interest to terminate the Agreement. I note that such termination would have no effect on anyone other than the parties immediately involved.
(b) s.226(b) - Appropriateness
[40] The Full Bench in Aurizon identified that the proper construction of s.226 in assessing appropriateness involved consideration of contextual matters that bear upon the provisions construction, as well as giving specific consideration to the matters identified in ss. 226(b)(i) and (ii). The Full Bench observed: 7
“All of the circumstances also need to be taken into account in considering whether termination of the agreements is appropriate. In particular the views of employers and employees covered by the agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s. 226(b) to take into account all of the circumstances including those set out in s. 226(b)(i) and (ii) is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, we approached the task by reference to the construction of s. 226 and the contextual matters that bear upon that construction dealt with earlier as well as giving specific consideration to the matters identified in s. 226(b)(i) and (ii).”
(Footnote omitted)
(i) s.226(b)(i)
[41] Addressing the terms of s.226(b)(i), it is clear that the Applicant supports the termination of the Agreement, and the UWU opposes such termination. The issue between the parties is the views of employees and the appropriateness of the steps taken to elicit any such views.
[42] I do not place any weight on the hearsay evidence referred to in the Respondent’s Submissions referred to in paragraph [25] above, and accept that the UWU did not seek to attribute any weight to those submissions. Instead, the focus of the UWU was the adequacy of steps taken to obtain the views of employees, and the additional steps it urged as appropriate.
[43] At the time of making the Application, the Applicant provided all employees with an email that attached a memo and summary FAQ document which set out the relevant information relating to the decision to make the Application to the Commission, the Application process and a confirmation that certain more beneficial provisions of the Agreement would be maintained by the Applicant. The contents of the memo provided to the employees shows the detail provided to employees, and the transparency provided by the Applicant regarding all aspects of the Application process. The totality of that email was as follows:
“Memo
To: All Staff
Date: 31 May 2021
From: Amanda Stephens
Re: Proposed Termination of Rooty Hill RSL Club Enterprise Agreement 2014
As you are aware, West HQ, together with its employees and the United Workers Union (formerly United Voice) have previously bargained for an Enterprise Agreement (EA). The last bargaining process was finalised in early 2014 with the creation of the current EA, the Rooty Hill RSL Club Enterprise Agreement 2014 (EA).
The EA passed its nominal expiry date on 16 April 2017 and we have been operating under an expired EA since that date.
Over the past few years, the EA bargaining process has become overly complicated and increasingly uncertain (specifically in reference to how the Fair Work Commission has applied the Better Off Overall Test (BOOT Test), and the time it takes to get an agreement approved is very lengthy.
In order to update the terms of employment for our employees, we are looking at applying to the Fair Work Commission to terminate the EA, and reverting back to the terms and conditions under the Award, including the guaranteed wage increases handed down by the Fair Work Commission.
What is happening?
West HQ is going to file an application in the Fair Work Commission (FWC) to terminate the EA. Why Terminate the EA?
The current EA was originally made in 2014 and there have been substantive changes to the industrial landscape since then, including changes to the underlying Award.
Terminating the EA will mean West HQ employees will be covered by the Registered and Licensed Clubs Award 2020 (Award). This change will allow West HQ employees to receive benefits under the Award that they are not currently entitled to, in line with current prevailing industry standards.
Why not Negotiate a new EA?
Since 2014 when the last EA was approved, the industrial landscape has changed quite significantly with the FWC becoming far more prescriptive in relation to the application of the BOOT Test. West HQ wants to ensure its employees are remunerated appropriately and correctly. When employees are covered by the Award, any changes passed by the FWC will be implemented immediately by the business.
Will I receive the same rate of pay, hours and roster?
Yes, you will continue to receive the same rate of pay as under the EA. While West HQ has been operating under a "nominally" expired EA, we have ensured our base rates have continued to
increase annually and remain at the same level as those contained in the Award. You will have the same hours and rostering arrangement as operated under the EA.
Will I still receive pay increases?
Wage increases for hourly rate employees (not salaried employees) will now be in accordance with the annual wage increase to the Award which will come into effect on 1 July each year after the FWC announces the minimum wage decision. The amount of the increase will be determined by the FWC, and West HQ will pass on any increase to you. This is the same process we have been following for the last few years .
What additional benefits will I receive under the Award?
The terms and conditions in the Award and EA are largely the same, however being covered by the Award will bring about the following additional benefits:
Entitlement to shift penalties for those who work night shifts (ie. between 7pm and 7am);
A broken/split shift allowance
Greater notification of change to rosters
More beneficial break entitlements
Employees will receive these entitlements once the EA termination application is approved by the FWC.
What Entitlements under the EA will be maintained?
West HQ recognises that there are certain entitlements under the current EA that are more beneficial to employees than the Award equivalent. West HQ undertakes to maintain the following entitlements:
Clause 9.9: additional loading will be maintained for Pre-99 employees;
Clause 15: enhanced redundancy will be maintained for existing emplo yees;
Clause 17.9: this will be maintained for those employees currently entitled to this provision;
Clause 32: safe family support leave will be maintained; and
Clause 33: enhanced first aid allowance (compared to Award) will be maintained for those employees currently receiving this allowance.
Does this Impact my Union Membership?
If you are currently a member of the United Workers Union the proposed EA termination will not impact your membership . United Workers Union will continue to have coverage because the industry and the work you perform will remain the same .
This means you can continue to meet with them to discuss matters relating to your employment , and if you are an employee who is a delegate you can still carry out your duties pursuant to the legislation that relates to any specific issue that may arise.
What about salaried employees?
There will be no changes to salaries or other benefits and entitlements of salaried employees. The review of salaries will continue to take place in December each year.
What Happens Next?
West HQ will be filing the Application with the FWC at the end of the week.
While West HQ waits for the FWC to process the Application to terminate the EA there will be no change to your terms and conditions of employment.
West HQ will keep staff updated on the progress of the application and advise when the change will occur.
If the termination is approved, we will provide a contract variation letter guaranteeing the more beneficial terms under the Enterprise Agreement which will be maintained as outlined above.
If the application is unsuccessful your employment will continue under the EA. Have your say?
It is our intention to be open and transparent throughout this process.
If you have any questions or would like to provide feedback on the proposal you can do the following:
1. Tell your manager
2. Contacting one of the members of the HR department (see below)
3. Ask a colleague
4. Contact the union if you are a member.
Where Can I Find More Information?
If you have any questions or comments in the meantime please do not hesitate to contact your manager or any of the following people directly :
Amanda Stephens | 02 9677 4939 | |
Laiken McCabe | 02 9851 5819 | lmccabe@westhq .com .au” |
[44] On 13 August 2021, Ms Stephens sent a further email to employees of the Applicant that addressed, among other human resources issues, the Application. That email advised employees as follows regarding the Application:
“Termination of Enterprise Agreement
We are aware that the United Workers Union (UWU) has been contacting employees (many of whom no longer work with us) and posting information on social media in relation to West HQ’s application to terminate the Rooty Hill RSL Club Enterprise Agreement 2014 (EA) which is currently before the Fair Work Commission.
The UWU social media posts and text messages contain a number of statements that are misleading and misrepresent West HQ’s position in relation to what happens to employee benefits if the EA is terminated.
We confirm that when the EA is terminated:
Accrual of the 5th week of annual leave (for shift workers) will be on the same basis as it is currently under the EA; No Change
West HQ has no intention to change its pay frequency from weekly to fortnightly; No Change
West HQ will not change the way casual employees are rostered; and No Change
West HQ will guarantee the 3 days paid safe family support leave entitlement for all employees. No Change
The UWU had previously notified West HQ of its concerns in relation to the above points, and West HQ had already confirmed its position as set above with the UWU. It is extremely disappointing that the UWU appears to have ignored this by posting misleading information.
Since the commencement of this process, we have been open and transparent with you in relation to the EA termination. We have sought your feedback and welcomed any questions that you may have in relation to the process. This continues to be the case.
Attached are some FAQs that may assist you in understanding what the change will mean for you. The application is before the Fair Work Commission and scheduled for hearing on 8 September 2021. I will continue to provide you with updates on this process.
Please contact me if you have any questions or concerns around this process.”
[45] I consider that, unless an employee disregarded all correspondence regarding the Application (which seems to have emanated from both the Applicant and the UWU), they would be aware of the Application, its asserted implications, and the date of the Hearing. Notwithstanding such awareness, no employee has sought to express a view in support of either the Applicant or the UWU. In those circumstances, I can do no more than find the views of the employees to be neutral in relation to the Application. 8
[46] Contrary to the submissions of the UWU, I do not consider there remains a need for further involvement of the Commission in ascertaining the views of employees. As noted above, the employees have been recipients of detailed correspondence regarding the Application, apparently from both the Applicant and the UWU. The course of action proposed by the UWU, involving the Commission corresponding directly with employees and receiving responses “made by email solely to the Commission,” would entail impermissible direct involvement of the Commission in the gathering of evidence, and a denial of natural justice to the Applicant and the UWU due to the proposed secrecy of those responses.
(ii) S.226(b)(ii)
[47] Addressing the terms of s.226(b)(ii), while the UWU is an organisation covered by the Agreement, there was nothing put before me going to the circumstances I should take into account regarding the likely effect of the termination on the UWU.
[48] As to the likely effect of the Application on the employees, there is no direct evidence from any employee before me. The evidence of the Applicant discloses that the likely effects of the termination on employees, both existing and new, are not overall detrimental.
[49] In particular, the termination of the Agreement will not result in a reduction of take-home pay or a reduction in the overall employment entitlements of employees who are currently covered by the Agreement. Those employees have received a guarantee that they will continue to receive the same rates of pay, rosters and hours, as well as other Agreement entitlements including but not limited to:
a. current above-Award rates of pay;
b. additional loadings for pre-99 employees;
c. higher redundancy pay scale and higher rate of payment for redundancy;
d. paid safe family support leave;
e. higher first aid allowance;
f. free meals, soft drink, tea and coffee;
g. salary sacrifice arrangements;
h. maintaining 2014 Agreement criteria for the additional week of annual leave for shiftworkers; and
i. additional Rostered Days Off for pre May-2010 employees.
[50] If the Agreement is terminated, employees will also be entitled to the benefit of a number of additional entitlements arising from the Award which do not form part of the Agreement, including:
a. entitlement to shift penalties for afternoon and night shift;
b. broken / split shift allowance; and
c. greater notification of change to rosters.
[51] Having regard to all the factors referred to in s.226 of the Act, the circumstances of the employees, the Applicant and the UWU, including the likely effect that the termination will have on each of them, I consider that those factors weigh in favour of a finding that the termination of the Agreement is appropriate. I am also satisfied that it would not be contrary to the public to terminate the Agreement.
Further Issues
[52] Two further issues arose at the Hearing or shortly thereafter. Those issues were:
(a) The draft contract variation letters annexed to Ms Stephen’s statement which will be issued to employees to provide various on-going contractual guarantees to Agreement entitlements if the Application is granted included some typographical errors. This decision has been based upon the existence and effect of such guarantees, and so it is essential that the final form of such correspondence is established before the Agreement can be terminated; and
(b) After the conclusion of the Hearing, the Applicant wrote to the Commission and the UWU with the following request:
“In relation to the timing of the Agreement termination, in the event the Deputy President approves the Application to terminate the Agreement, the Applicant respectfully requests that the Applicant should revert to the Award from 1 November 2021, which the Applicant notes is the date that the next pay increases under the Registered and Licensed Clubs Award 2020 come into effect and Monday, 1 November 2021 is the start of the Applicant’s weekly pay period.”
[53] In order to resolve the further issues, the following directions are made:
1. The Applicant is directed to file with the Commission, and serve on United Workers Union (the UWU), the final form of the proposed contract variation letters to be issued to employees by 4.00pm on 4 October 2021.
2. In the event that the UWU wishes to make submissions regarding the acceptability of the proposed contract variation letters, the UWU is directed to file with the Commission, and serve on the Applicant, an outline of submissions by 4.00pm on 11 October 2021.
3. In the event that the UWU wishes to make submissions opposing a termination date of the Agreement of 1 November 2021, the UWU is directed to file with the Commission, and serve on the Applicant, an outline of submissions by 4.00pm on 11 October 2021.
[54] Upon the further issues being satisfactorily dealt with, I will issue the appropriate order terminating the Agreement.
DEPUTY PRESIDENT
Appearances:
Mr R Marshall, for the Applicant.
Mr J Davis, for the Respondent.
Hearing details:
2021.
September 8.
Sydney (via videoconference)
Printed by authority of the Commonwealth Government Printer
<PR734369>
1 [2019] FWCA 2353.
2 Shop, Distributive and Allied Employees Association [2019] FWC 4725 (5 July 2019) at [73] to [74].
3 (2005) 139 IR 34.
4 [2015] FWCFB 540.
5 Ibid at [176].
6 Shop, Distributive and Allied Employees Association [2019] FWC 4725, at [66].
7 [2015] FWCFB 540, at [167].
8 As also found in Shop, Distributive and Allied Employees Association [2019] FWC 4725 (5 July 2019) at [74].
3
0