Apto Group Pty Ltd

[2020] FWCA 4650

[2020] FWCA 4650

FAIR WORK COMMISSION

DECISION

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

Apto Group Pty Ltd
(AG2020/2421)

APTO GROUP COLLECTIVE WORKPLACE AGREEMENT 2007

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 SEPTEMBER 2020

Application for termination of the Apto Group Collective Workplace Agreement 2007

[1] This decision concerns an application made on 13 August 2020 by Apto Group Pty Ltd under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act) to terminate the Apto Group Collective Workplace Agreement 2007 (Agreement). The Agreement covers the company and its employees engaged in the classifications in clause 8 of the Agreement. There is no union covered by the Agreement.

[2] The Agreement is an instrument that was made under the Workplace Relations Act 1996 and passed its nominal expiry date in 2010. It is a ‘collective agreement-based transitional instrument’ for the purposes of Item 16 of Schedule 3 of the TPCA Act. The effect of this item is that the termination provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. In short, an application may be made to terminate the Agreement under s 225 of the FW Act.

[3] Section 225 of the Act provides:

“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.”

[4] Section 226 of the Act 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.”

[5] Ms Debra Ward, the company’s chief financial officer, provided a statutory declaration in support of the application, in which she stated that the Agreement contains a number of clauses which are either inconsistent with the National Employment Standards (NES) or less favourable than the terms of the underpinning award, the Social, Community, Home Care and Disability Services Industry Award 2010 (Award). She stated that in order to address the shortcomings of the Agreement, the company has applied the terms of the Award, and that where the Agreement provides additional benefits, these have been maintained. Ms Ward stated that this has led to operational complexity and confusion for both managers and employees.

[6] On 18 August 2020, I directed the company to provide employees covered by the Agreement with a copy of the application and directions that employees could send to my chambers any views they may have as to the application to terminate the Agreement by Friday, 28 August 2020. The company confirmed that it complied with my directions and provided the relevant correspondence to the Commission. My chambers did not receive any views from employees in relation to the application.

[7] Returning to s 225, I note that at the time of the application, the company was an employer covered by the Agreement, and therefore had the necessary standing under
s 225(a) to bring the application. Based on the material contained in the company’s statutory declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances, including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. I therefore terminate the Agreement.

[8] The termination will operate from 8 September 2020.

DEPUTY PRESIDENT

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