Anglican Community Care Inc
[2022] FWCA 1145
•1 APRIL 2022
| [2022] FWCA 1145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument
Anglican Community Care Inc
(AG2022/743)
Anglican Community Care Incorporated Employee Collective Agreement 2009
| Social, community, home care and disability services | |
| COMMISSIONER PLATT | ADELAIDE, 1 APRIL 2022 |
Application for termination of the Anglican Community Care Incorporated Employee Collective Agreement 2009
On 16 March 2022, Anglican Community Care Inc (the Applicant) made an application pursuant to Schedule 3 item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Anglican Community Care Incorporated Employee Collective Agreement 2009 (the Agreement). The effect of the Transitional Act is that the application is dealt with as if it were made under Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act).
Relevant Legislation
Sections 223 and 223 of the Act are relevant to this application.
Sections 222 and 223 state:
“222 Application for the FWC's approval of a termination of an enterprise agreement
Application for approval
(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the termination is agreed to; or
(b) if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.
223 When the FWC 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, the FWC must approve the termination if:
(a) the FWC 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) the FWC 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) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC 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.”
The Agreement is a collective agreement-based transitional instrument with a nominal expiry date of 1 February 2015 (five years after the date of lodgement). The Agreement covers 237 employees.
Attached to the application was a Statutory Declaration of Mr Peter Bull, Executive Manger – Human Resources, Admin & Facilities, which is relevantly summarised as follows:
· The Applicant announced its proposal to terminate the Agreement to its employees on 3 February 2022.
· From 3 February 2022, the Applicant embarked on an employee consultation process, including by launching an internal communication site, releasing information flyers and frequently asked questions documents and holding a total of 15 consultation meetings between 10-23 February 2022.
· Between 14-25 February 2022, the Applicant provided further clarification to the employees on the issues of Flexitime, Cultural Leave Policy, the impact of the proposed termination on casual employees, and the differences between the Agreement and the underpinning modern Award.
· All employees were notified of the time, place and method of vote on 25 February 2022.
· The vote of employees was conducted from 7-10 March 2022. Of the 144 employees who cast a valid vote, 135 employees voted to approve the termination.
On 16 March 2022, I directed the Applicant to advise the Commission of the effect the proposed termination of the Agreement would have on the existing terms and conditions of employment and wages.
On 18 March 2022, the Applicant provided the Commission with the following information:
“Termination of the Agreement will not result in a reduction of base rates of pay.
If the application to terminate the Agreement is approved, ac.care will apply the minimum entitlements of the applicable modern award in every respect, to those employees covered by it, together with – and not to the exclusion of - a series of ‘above-award’ conditions, such as:
· Paid Parental Leave of up to four (4) weeks (new entitlement);
· Paid Aboriginal and Torres Strait Islander Cultural leave (also applicable to casual employees) for up to 2 days (new entitlement);
· Paid Pregnancy Loss Leave (2 days) (new entitlement);
· The continuation of salary packaging benefits;
· Paid domestic and family violence leave (10 days per annum) (new entitlement);
· Progression through pay-points for all employees (including casual employees) at the employee’s 12 -month service anniversary (new entitlement and in excess of the minimum entitlements provided by the SCHADS Award);
· The entitlement to 16 weeks’ redundancy pay to employees with 9 years or more of continuous service (consistent with clause 18.2.1 of the Agreement);
· Paid time off to donate blood;
· Paid jury service leave in excess of 10 days (consistent with clause 42 of the Agreement);
· Paid emergency and community service leave up to 10 days (consistent with clause 43 of the Agreement).
Contracts of employment will maintain an additional week’s entitlement to annual leave in lieu of annual leave loading (for eligible employees) and in lieu of meal allowances and first aid allowances as conditionally provided by modern awards.
Some entitlements will not be maintained following the termination of the Agreement. For example:
· The afternoon and night shift penalties provided by clause 29.3 of the SCHADS Award (12.5% for afternoon shifts and 15% for night shifts) will replace the 15% penalty for afternoon and night shifts under clause 28.4 of the Agreement.
· Consistent with the NES, shift workers will not be entitled to payment for work not performed on a public holiday if they are not usually rostered to work the hours that fall on the public holiday.
· The sleepover allowance will be that provided by the SCHADS Award, except that when an employee is not required to perform work during the sleepover period, an allowance of $75 will apply.”
On 18 March 2022, I issued Directions that the Applicant was to provide the Form F24A Statutory Declaration, the Form 28 Application, the explanatory letter (as above), and my Directions, to all employees whose terms of employment are covered by the Agreement, and to provide proof of service to the Commission. In the Directions, any affected employee who wished to be heard was invited to contact my Chambers by 4.00pm on Friday, 1 April 2022. I did not receive any correspondence from any of the affected employees.
I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreement.
As requested by the Applicant, the termination will come into effect from midnight on 22 May 2022.
COMMISSIONER
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