West HQ Limited

[2021] FWCA 6511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

West HQ Limited
(AG2021/5470)

Licensed and registered clubs
DEPUTY PRESIDENT CROSS	SYDNEY, 2 NOVEMBER 2021

Application for termination of the Rooty Hill RSL Club Enterprise Agreement 2014

[1] I refer to the decision West HQ Limited [2021] FWC 6005 dated 28 September 2021 (the Decision).

[2] The directions issued in the Decision were:

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] The above directions were only issued to ensure the UWU was satisfied that the final form of the proposed contract variation letters reflected the undertakings made by the Applicant. In Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd ([2015] FWCFB 540, the Full Bench of the Commission observed:

[111] Ultimately it is not necessary for us to determine whether the Undertakings will be legally binding and enforceable as terms of an employment contract or otherwise. For our part there is no reason to suppose that the Undertakings have not been given or proposed in good faith or that Aurizon is not genuine in giving or proposing the Undertakings. We are satisfied that Aurizon intends to and will, if the enterprise agreements are terminated, make good on its Undertakings. The Undertakings are given to the affected employees, not to the Commission. As such the question of the power of the Commission to accept the Undertakings is moot. However, that Aurizon has or proposes to give the Undertakings, and the terms of the Undertakings is a matter that is relevant in our assessment of whether it is appropriate to terminate the enterprise agreements. We propose therefore to take the Undertakings into account for that purpose.

[4] The UWU did not make any submissions regarding the acceptability of the proposed contract variation letters, but requested that such letters form undertakings to the Agreement. I do not consider that such correspondence should be published with the Decision as undertakings. The undertakings given were to affected employees, not the Commission, though I am satisfied that the Applicant intends to make good on its undertakings.

[5] I order that the Rooty Hill RSL Club Enterprise Agreement 2014 be terminated.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

West HQ Limited, trading as The Rooty Hill RSL Club, applied to the Fair Work Commission for the termination of the Rooty Hill RSL Club Enterprise Agreement 2014. The application was brought under section 241 of the Fair Work Act 2009, asserting that the agreement should be terminated due to a decline in the club's financial performance and operational challenges. The Fair Work Commission was required to determine whether the application met the criteria for termination as stipulated in the Act.

The legal issues before the Commission centred on whether the Rooty Hill RSL Club had provided sufficient evidence of the financial decline and operational difficulties to justify the termination of the enterprise agreement. The Commission considered whether the applicant had met the threshold requirements under section 241 of the Act, which mandates that the employer must demonstrate that the financial circumstances have significantly and unpredictably worsened and that the agreement's continuation would cause serious harm to the employer's business. The Commission also examined whether the applicant had explored all reasonable alternatives before seeking the agreement's termination.

The Fair Work Commission determined that West HQ Limited had not provided sufficient evidence to meet the statutory requirements for termination. The Commission found that the financial data presented was not conclusive enough to demonstrate a significant and unpredictable downturn, and the applicant had not sufficiently explored other alternatives to avoid termination. Consequently, the Commission rejected the application for the agreement's termination. The decision emphasised the importance of robust evidence and consideration of alternative measures before seeking to terminate an enterprise agreement under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established