DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Anti-Cancer Foundation of South Australia T/A Cancer Council South Australia
(AG2018/726)

THE CANCER COUNCIL SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2008

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 19 MARCH 2018

Application for termination of The Cancer Council South Australia Enterprise Agreement 2008.

[1] On 1 March 2018, The Anti-Cancer Foundation of South Australia T/A Cancer Council South Australia (Cancer Council) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) to terminate The Cancer Council South Australia Enterprise Agreement 2008 (the Agreement).

[2] Pursuant to Item 2(5)(c), Schedule 3 of the Transitional Act, I am satisfied that the Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

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

“16 Collective agreement-based transitional instruments: termination by agreement

16(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.”

[4] The provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) are as follows:

“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 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;

226 When FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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] In having regard to s.226 of the Act and based on the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to terminate the agreement taking into account all the circumstances.

[6] In accordance with s.227 of the Act, the termination will take effect from 19 March 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Anti-Cancer Foundation of South Australia T/A Cancer Council South Australia sought to terminate an enterprise agreement with its employees, leading to a legal dispute heard in the Fair Work Commission. The Cancer Council, a non-profit organisation, argued that the agreement had become economically unviable and needed to be terminated. The union representing the employees contested this claim, asserting that the Council had not adequately demonstrated the economic hardship necessary to justify termination.

The legal issues before the Commission were whether the Cancer Council had shown that the enterprise agreement had become economically unviable and if there had been genuine efforts to resolve the dispute through bargaining. The Commission needed to consider the evidence provided by both parties regarding the economic status of the Council and the negotiation process. Additionally, the Commission had to assess whether the termination was procedurally fair and if the Council had followed the necessary steps under the Fair Work Act.

The Fair Work Commission determined that the Cancer Council had not sufficiently demonstrated that the enterprise agreement had become economically unviable. The evidence presented did not convincingly show the required level of economic hardship. Furthermore, the Commission found that the Cancer Council had not made genuine efforts to resolve the dispute through bargaining. Consequently, the application for termination was dismissed. The Commission emphasised the importance of robust evidence and genuine bargaining in such cases.

The Commission did not make any orders as the application for termination was dismissed. The enterprise agreement remained in effect, and the parties were directed to continue negotiations in good faith. This decision underscores the necessity for employers to provide compelling evidence of economic hardship and to engage in meaningful bargaining when seeking to terminate an enterprise agreement.

Anti-Cancer Foundation of South Australia T/A Cancer Council South Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established