Aboriginal Hostels Limited
[2010] FWA 1489
•23 FEBRUARY 2010
[2010] FWA 1489 |
|
DECISION |
Fair Work (Transistional Provisions and Consequential Amendments) Act 2009
cl. 16 of Schedule 3 - Application for termination of collective agreement
(AG2010/321)
ABORIGINAL HOSTELS LIMITED CERTIFIED AGREEMENT 2003-2006
[AG831159]
Commonwealth employment | |
COMMISSIONER DEEGAN | CANBERRA, 23 FEBRUARY 2010 |
Collective agreement-based transitional instruments, termination by Fair Work Australia
[1] An application has been made by Aboriginal Hostels Limited for the termination of the Aboriginal Hostels Limited Certified Agreement 2003-2006 (the Agreement). The application was made pursuant to clause 16, Schedule 3 of the Fair Work (Transistional Provisions and Consequential Amendments) Act 2009.
Legislation
[2] Clause 16 relevantly provides:
16 Collective agreement-based transitional instruments: termination by FWA
(1) Subdivision D of Division 7 of Part 2-4 of the Fair Work 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.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement's nominal expiry date is taken to be the end of the period of the agreement.
[3] Section 226 of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act states:
When FWA must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:
(a) FWA is satisfied that it is not contrary to the public interest to do so; and
(b) FWA 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.
Consideration
[4] The Agreement has a nominal expiry date of 16 December 2006. A replacement agreement (the Aboriginal Hostels Limited Enterprise Agreement 2009-2011) has been approved by FWA. The replacement agreement commenced operation on 15 February 2010.
[5] I am satisfied that, in all the circumstances it is not contrary to the public interest to terminate the Agreement.
[6] The employer sought the termination of the Agreement. The employees covered by the Agreement approved the terms of the replacement agreement. By operation of s.58 of the Fair Work Act 2009, the Agreement ceased to apply to any employee when the replacement agreement came into operation. As a result there are no employees who are covered by the Agreement.
[7] Each of the employee organisations who were covered by the Agreement (the CPSU, the Community and Public Sector Union, the Liquor, Hospitality and Miscellaneous Union and the Australian Nursing Federation) have indicated that there is no objection to the termination.
[8] I am, therefore, satisfied that the Agreement should be terminated.
[9] The termination operates from the date of this approval.
COMMISSIONER
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