Western Australian Trotting Association T/A Gloucester Park

[2021] FWCA 3115

[2021] FWCA 3115

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Western Australian Trotting Association T/A Gloucester Park
(AG2021/4738)

WESTERN AUSTRALIAN TROTTING ASSOCIATION TOTE OPERATIONS COLLECTIVE WORKPLACE AGREEMENT SEPTEMBER 2007

Racing industry
COMMISSIONER PLATT	ADELAIDE, 31 MAY 2021

Application for termination of the Western Australian Trotting Association TOTE Operations Collective Workplace Agreement September 2007.

[1] On 20 April 2021, Western Australian Trotting Association T/A Gloucester Park (the Applicant) made an application pursuant to Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Western Australian Trotting Association TOTE Operations Collective Workplace Agreement September 2007 (the Agreement).

[2] On 30 April 2021, I issued Directions requiring the Applicant to produce a table identifying the disadvantages to employees, should the Agreement be terminated, and to provide that table, the form F28 Application, the Statutory Declaration of Mr Eddie Soto and the Directions to all employees and employee organisations covered by the Agreement.

[3] On 4 May 2021, I received an email from the Applicant in which it submitted that there were no employees that were currently employed under the Agreement, nor would they be in the future.

[4] This statement seemed to contradict the Statutory Declaration of Mr Eddie Soto that was submitted with the application.

[5] On 5 May 2021, I held a telephone conference with the Applicant in which I clarified what was required of the Applicant.

[6] On 6 May 2021, I issued Amended Directions requiring the Applicant to produce a table identifying the disadvantages to employees, should the Agreement be terminated, and to provide that table the form F28 Application, the Statutory Declaration of Mr Eddie Soto and the Direction to each employee or employee organisation covered by the Agreement.

[7] Mr Soto’s Statutory Declaration is summarised as follows:

•  The Agreement has been expired since 1 September 2010.

•  The Agreement is outdated and contains clauses that when compared to the Modern Awards become redundant.

•  Since its introduction, the Fair Work Act 2009 (the Act) and the modern Racing Club Events Award 2020 (the Award) have been introduced which would now otherwise apply to the employees covered by the Agreement.

•  Termination will provide greater clarity to employees.

•  Terminating the Agreement would not be contrary to the public interest.

•  Employees will not suffer any detriment.

[8] The Applicant invited the affected employees to provide their views in accordance with the Amended Directions issued. Only three employees responded, and those employees supported the termination of the Agreement.

Legislation

[9] Item 16 of Schedule 3 of the Transitional Act provides as follows:

“16 Collective agreement-based transitional instruments: termination by agreement

16(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[10] The provisions of Subdivision D of Division 7 of Part 2-4 of the Act are as follows:

“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 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 FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.”

Conclusion

[11] In having regard to s.226 of the Act and based on the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to terminate the Agreement taking into account all the circumstances and the fact that employees will not be financially disadvantaged by the termination.

[12] In accordance with s.227 of the Act, the termination will take effect from 31 May 2021.

COMMISSIONER

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<AC310981  PR730308>