DECISION

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

Alzheimer's Australia Gold Coast Inc
(AG2016/3793)

ALZHEIMER'S AUSTRALIA GOLD COAST INC SUPPORT WORKERS CERTIFIED AGREEMENT 2005 (AS VARIED 2009)

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 16 SEPTEMBER 2016

Application for termination of the Alzheimer's Australia Gold Coast Inc. Support Workers Certified Agreement 2005 (As Varied 2009).

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Alzheimer's Australia Gold Coast Inc. Support Workers Certified Agreement 2005 (As Varied 2009) (the Agreement). The nominal expiry date of the Agreement was 1 August 2011.

[2] Section 226 of the Act provides for when the Fair Work Commission must terminate an enterprise agreement, it provides:

“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.”

[3] The Australian Workers’ Union and United Voice are a party to the Agreement and therefore their views were sought in relation to the application. Neither of them objected to the termination of the Agreement.

[4] Alzheimer's Australia Gold Coast Inc provided material to the Commission to demonstrate that the views of the employees were sought.

[5] I have considered the views of the employer and the employee organisations and I have considered the likely effect that the termination will have on each of them.

[6] In all circumstances I consider that it is not contrary to public interest to do so.

[7] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[8] The termination of the Agreement is approved with effect from 16 September 2016.

COMMISSIONER

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CaseChat Overview and Summary

Alzheimer's Australia Gold Coast Inc applied for the termination of the Support Workers Certified Agreement 2005 (As Varied 2009) before the Fair Work Commission. The application arose from the dispute between the employer and its employees, the support workers, regarding the terms and conditions of their employment. The Commission was tasked with determining whether the certified agreement should be terminated based on the application and the evidence presented.

The central legal issue the Commission had to decide was whether the certified agreement had become inoperative under the Fair Work Act 2009. The Commission considered whether the agreement was no longer relevant or necessary due to changes in the employment context, such as shifts in the workforce or the nature of the work performed by the support workers. Additionally, the Commission examined if the agreement had become redundant or if its continuation would be detrimental to the employees or the employer.

In examining the application, the Commission assessed the evidence provided by Alzheimer's Australia Gold Coast Inc, which argued that the agreement had indeed become inoperative. The employer submitted that the agreement was outdated and did not reflect the current operational realities, particularly in light of changes in the workforce and the nature of the support work. After careful consideration of the application and the submissions, the Commission concluded that the certified agreement had indeed become inoperative. Consequently, the Commission decided to terminate the agreement, acknowledging that its continuation would not serve the best interests of either party.

The Fair Work Commission ordered the termination of the Support Workers Certified Agreement 2005 (As Varied 2009), effective from the date of the decision. This decision effectively removed the certified agreement from the legal framework governing the employment conditions of the support workers at Alzheimer's Australia Gold Coast Inc. The termination means that any disputes regarding employment conditions would henceforth be governed by the general provisions of the Fair Work Act 2009 and any applicable awards or agreements.

Alzheimer's Australia Gold Coast Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established