Advocacy for Disability Access and Inclusion Inc

[2015] FWCA 5187

[2015] FWCA 5187

FAIR WORK COMMISSION

DECISION

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

Advocacy for Disability Access and Inclusion Inc
(AG2015/3744)

PARENT ADVOCACY INC - ENTERPRISE AGREEMENT 2001

Social, community, home care and disability services
COMMISSIONER HAMPTON	ADELAIDE, 29 JULY 2015

Application for termination of the Parent Advocacy Inc - Enterprise Agreement 2001.

[1] This decision concerns an application by Disability Access and Inclusion Inc pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Parent Advocacy Inc - Enterprise Agreement 2001. 1

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 2 with a nominal expiry date of 11 March 2004.

The relevant legislation

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

“16 Collective agreement-based transitional instruments: termination by the FWC
(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.
(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.”

[4] Subdivision D of Division 7 of Part 2-4 of the FW Act states:

“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 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the 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.”

[5] This matter was the subject of a hearing on 29 July 2015 at which time I heard from Ms Sexton of Business SA with Ms Challans, Chairperson of Disability Access and Inclusion Inc on behalf of the applicant employer.

[6] The applicant employer, Disability Access and Inclusion Inc, is the successor to the employer party that entered the 2001 Enterprise Agreement and is entitled to apply for the termination of the Agreement pursuant to s.225 of the FW Act. It is also evident that the employees who are presently subject to the Agreement do not oppose its termination. 3

[7] The employment of those employees will fall back to the coverage and application of the relevant modern award. That award is a more contemporary instrument than the present Agreement and will in this case provide appropriate terms and conditions for the enterprise and employees concerned. The termination of the Agreement will also remove the present uncertainty associated with the interaction between the now very old instrument and the relevant minimum standards of the FW Act.

[8] The changing nature of the organisation and its funding arrangements also mean that the termination of the Agreement is appropriate.

[9] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[10] The termination will take effect on and from 29 July 2015.

COMMISSIONER

 1   The agreement was originally approved pursuant to the Industrial and Employee Relations Act 1994 (SA).

 2 Item 2(5)(c)(iii) of Schedule 3.

 3   A notice of listing was also provided to all employees by the FWC and this invited employees with concerns to contact the Commission. No concerns have been raised.

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