Application by Cancer Council ACT

[2022] FWCA 376

[2022] FWCA 376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Application by Cancer Council ACT
(AG2021/9099)

CANCER COUNCIL ACT ENTERPRISE AGREEMENT 2016 TO 2019

Australian Capital Territory
COMMISSIONER MATHESON	SYDNEY, 7 FEBRUARY 2022

Application for termination of the Cancer Council ACT Enterprise Agreement 2016 to 2019.

[1] On 17 December 2021, Cancer Council ACT (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Cancer Council ACT Enterprise Agreement 2016 to 2019 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

[2] The Agreement is a single enterprise agreement. It was approved by Commissioner Lee on 21 June 2016. 1

[3] The nominal expiry date of the Agreement is 30 June 2019.

Legislation

[4] The relevant provisions of 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 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.”

Consideration – s.225

Is the Applicant an employer covered by the Agreement?

[5] Clause 4.1(a) names Cancer Council ACT as a party to the Agreement. The Applicant is Cancer Council ACT and I am satisfied it is the same legal entity.

[6] Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement passed its nominal expiry date?

[7] Clause 5.2 of the Agreement provides that the nominal expiry date of the Agreement is 30 June 2019. Having considered the materials before the Commission and clause 5.2 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.

Consideration – s.226

Section 226(a) – Public interest

[8] The Applicant submitted that it is not contrary to public interest to terminate the Agreement as all terms and conditions would be preserved through individual contracts underpinned by relevant modern awards and employees agreed to the termination following the consultation process.

[9] I am satisfied that the termination of the Agreement will have no effect on the public as a whole. I have not identified any interests associated with this application that are distinct in nature from the interests of the parties. There are underpinning modern awards, as minimum standards, that will continue to cover the employees. In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

Section 226(b) – Appropriateness

[10] On 10 January 2022, the Commission directed that:

(a) by no later than 4:00pm on 17 January 2022, the Applicant must serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee organisation covered by the Agreement;

(b) by no later than 4:00pm on 17 January 2022, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with the direction above;

(c) by no later than 4:00pm on 19 January 2022, the Applicant must file in the Commission and serve on each employee organisation covered by the Agreement an outline of arguments, statements of evidence or other documents the Applicant intend to rely upon in support of its application to terminate the Agreement;

(d) by no later than 4:00pm on 24 January 2022, any employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement; and

(e) by no later than 4:00 pm on 4:00pm on 31 January 2022, the Applicant must file in the Commission and serve on each employee organisation covered by the Agreement any materials it wishes to file in reply.

[11] The Commission’s directions also noted that if any employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.

[12] On 18 January 2022, Ms Hawkins, Chief Executive Officer of the Applicant, filed a statutory declaration confirming compliance with the above directions.

[13] There are no employee organisations covered by the Agreement.

[14] No employees raised any objection to the application and no employees requested a hearing in relation to the application.

[15] The Applicant submitted that terminating the Agreement and reverting to contracts of employment underpinned by the relevant modern awards would be more suitable given the organisation’s small size and mix of roles. During a hearing on 1 February 2022, the Applicant confirmed this includes roles in finance, payroll, management, fundraising, communications, marketing and outreach as well as roles undertaken by employees with qualifications in nursing with the effect that multiple modern awards had coverage in relation to the small workforce of approximately 12 employees. The Applicant subsequently confirmed this included the Social, Community, Home Care and Disability Services Industry Award 2010 and Nurses Award 2020. While moving to contracts underpinned by the modern awards may give rise to some administrative complexity for the employer as more than one instrument will have application, support and information in relation to the modern awards is likely to more be more accessible for the small organisation due to its public availability.

[16] Ms Hawkins declared in the Form F24C that the termination would have no effect on current employees as all terms and conditions would be preserved through contracts, that consultation with employees had occurred in relation to the proposed termination of the Agreement and that employees agreed to the termination of the agreement. Following a hearing on 1 February 2022, the Applicant provided a copy of the contractual terms that employees would move to, as well as the consultation material provided to employees. The Commission requested further information about differences between the proposed contractual terms and the Agreement and the Applicant provided further information in response on 3 February 2022.

[17] In particular, the Applicant submitted that the weekend and public holiday provisions in the relevant modern awards are more favourable than those in the Agreement and that employees will not be disadvantaged with respect to weekend and public holiday penalties in the event the Agreement is terminated. The Applicant also updated the proposed contractual terms and provided an updated copy to the Commission.

[18] I accept that employees will remain covered by a safety net of minimum entitlements, that the provisions in the underpinning modern awards are in some respects more beneficial than those in the Agreement and that the updated contracts to be offered to employees will mitigate any detrimental effects on employees that may be associated with the termination of the Agreement.

Conclusion

[19] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

[20] Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 7 February 2022. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

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 1   [[2016] FWCA 4021].