Winadell Pty Ltd T/A Ibis World Square

[2023] FWCA 2902

[2023] FWCA 2902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Winadell Pty Ltd T/A Ibis World Square

(AG2023/2797)

DEPUTY PRESIDENT CROSS SYDNEY, 19 SEPTEMBER 2023

Application for termination of Ibis World Square Employee Collective Agreement - 2007

1. Winadell Pty Ltd T/A Ibis World Square (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Ibis World Square Employee Collective Agreement 2007 (the Agreement) after its nominal expiry date.

1. The Agreement is a single enterprise agreement, and its nominal expiry date was 3 February 2009.

1. The application indicated that the Agreement did not cover any applicable Unions.

1. Section 225 and 226 of the Act relevantly provides:

“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 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

1. My Chambers issued the following Directions on 17 August 2023:

Directions

Deputy President Cross has reviewed the application materials and issues the below directions:

1.The Employer, Winadell Pty Ltd Trading As Ibis World Square, is directed to communicate in writing to each of the employees covered by the Agreement, forwarding this email to them (with attachments and any other material supplied to the Commission at lodgement) and inviting them to correspond by email with Chambers in the event they wish to provide their views relevant to s.226 above. The Employer is directed to provide this email to employees covered by the Agreement by no later than 4:00pm 18 August 2023. For employees who don’t have email, a copy of this email and all other material supplied to the Commission at lodgement should be placed on the staff notice board in the meal rooms (or another accessible place) with the Chambers email contact.

2.The Employer is directed to provide an email to chambers explaining compliance with direction [1] by no later than 4:00pm 21 August 2023.

3.Employees covered by the Agreement may provide their views to the application by no later than 4:00pm 4 September 2023 by emailing [email protected].

All views of employees must be provided to the Commission and the Employer.

1. No Employee submissions were received by 4 September 2023, nor have been received to date. My Chambers received the following email from Miss Taylor on 8 September 2023 confirming this:

To Whom it may concern,

We have not had any employees covered by the agreement provide their views to the application.

Regards,

Michelle Taylor

1. Based on the declaration and submissions of Miss Taylor, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 18 September 2023. 

1. I Order accordingly.

DEPUTY PRESIDENT

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