[2019] FWCA 6407

The attached document replaces the document previously issued with the above code on 13 September 2019.

By inserting document referencing and Agreement title.

Mackenzie Barnes

Associate to Commissioner Spencer

Dated 16 September 2019

[2019] FWCA 6407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Yorkeys Knob Boating Club Inc T/A Yorkeys Knob Boating Club
(AG2019/2947)

YORKEYS KNOB BOATING CLUB INC. COLLECTIVE AGREEMENT 2006

Registered and Licensed Clubs
COMMISSIONER SPENCER	BRISBANE, 16 SEPTEMBER 2019

Application for termination of the Yorkeys Knob Boating Club Inc. Collective Agreement 2006.

[1] On 13 August 2019 Yorkeys Knob Boating Club Inc T/A Yorkeys Knob Boating Club (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Yorkeys Knob Boating Club Inc. Collective Agreement 2006 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

(a) FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] Mr Mathew Simpson, General Manager of the Applicant provided a statutory declaration which outlined the process taken for the employees to approve the termination of the Agreement.

[4] In respect of s.220(2)(b) and whether the employees were given a reasonable opportunity to decide whether they wanted to approve the termination, Mr Simpson’s evidence was that in the months leading up to 1 August 2019, employees were provided with a document that detailed the Agreement termination process and provided voting information.

[5] A secret ballot was conducted and of the 46 employees who were covered by the Agreement, 40 votes were cast. A majority of voters voted ‘yes’ to terminate the Agreement with 38 votes and 2 voters voted ‘no’. Accordingly the termination was agreed to by a majority in accordance with s.221(1).

[6] There are no other reasonable grounds for considering that the employees have not agreed to the termination. Upon termination of the Agreement, the employees will be covered by the Registered and Licensed Clubs Award 2010.

[7] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[8] In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the Yorkeys Knob Boating Club Incorporated, trading as the Yorkeys Knob Boating Club, which sought the termination of the Yorkeys Knob Boating Club Inc. Collective Agreement 2006. The application was made by the club under section 239 of the Fair Work Act 2009, seeking to have the agreement terminated on the grounds that it was no longer appropriate to the circumstances of the workplace. The application was opposed by the Maritime Union of Australia, which represented the employees of the club.

The central legal issue before the Commission was whether the collective agreement had become inappropriate due to changes in the club's circumstances since the agreement was made. The club argued that there had been significant changes in the business environment, including a substantial drop in membership and revenue, which had resulted in the club being unable to afford the terms of the agreement. The union, on the other hand, contended that the changes were not so significant as to render the agreement inappropriate and that the club had not properly considered the implications of terminating the agreement.

The Commission examined the evidence and arguments presented by both parties and considered the criteria for determining whether a collective agreement had become inappropriate. The Commission concluded that while there had been changes in the club's circumstances, these changes did not justify terminating the agreement. The Commission found that the club had not demonstrated that the agreement was no longer appropriate to the circumstances of the workplace and dismissed the application for termination. The Commission also noted that the union had made an offer to negotiate a new agreement, which the club had not responded to.

As a result of the decision, the Yorkeys Knob Boating Club Inc. Collective Agreement 2006 remains in force, and the application for its termination was dismissed. The club and the union are now required to negotiate a new agreement to address the changed circumstances of the workplace.

Yorkeys Knob Boating Club Inc T/A Yorkeys Knob Boating Club

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established