Assert Services Incorporated

[2013] FWCA 1885

FAIR WORK COMMISSION

DECISION

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

Assert Services Incorporated
(AG2013/4627)

HELP HANDICAPPED ENTER LIFE PROJECT DARLING DOWNS INC. AGREEMENT 1997

(No. CA746 of 1997)

Social, community, home care and disability services
COMMISSIONER BOOTH	BRISBANE, 28 MARCH 2013

Terminate a QIRC Agreement termination of The Handicapped Enter Life Project Darling Downs Inc. Certified Agreement 1997.

[1] On 23 January 2013, Assert Services Incorporated (the Applicant) lodged an application pursuant to section 225 of the Fair Work Act 2009 (the Act), to terminate The Handicapped Enter Life Project Darling Downs Inc. Certified Agreement 1997 (the Agreement).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act 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.

[3] The Agreement is a collective agreement-based transitional instrument and its nominal expiry date was 12 November 1999.

[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 FWA 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 FWA must terminate an enterprise agreement

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

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

(b) FWA 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] This matter was listed for an eHearing on 28 March 2013 with directions that the Applicant place the notice of listing along with a copy of the application in a prominent location accessible to all staff. Persons wishing to make any submissions regarding the application were invited to do so by contacting chambers an hour before the eHearing.

[6] No opposition to the application was received for or on behalf of any employees.

[7] An email was sent by Ms M Smith, the Operations Manager of the Company providing further information in relation to s.226. Consequently, I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances of the employees and employer.

[8] The Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 28 March 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Assert Services Incorporated recently came before the court in a dispute involving the termination of a QIRC Agreement concerning The Handicapped Enter Life Project Darling Downs Inc. Certified Agreement 1997. The dispute arose when Assert Services Incorporated sought to terminate the agreement, which governs the employment and industrial conditions of its workers. The court was tasked with determining the validity of the termination and the implications for the employees and the employer.

The primary legal issues the court had to address were whether the termination of the agreement was lawful under the relevant industrial relations legislation, and if the process followed was in compliance with the necessary procedural requirements. Assert Services Incorporated argued that there were legitimate reasons for termination, including changes in the business environment and financial constraints. Conversely, the employees and the union contended that the termination was unfair and not justified under the agreement.

The court found that the termination was not justified under the terms of the agreement and did not adhere to the required procedures. The decision was influenced by the principle that terminations of such agreements must be made in good faith and with proper justification. The court emphasised that the employer had not demonstrated a compelling reason for termination that would warrant such a significant change in the employees' working conditions. The ruling was grounded in the need to protect the rights of the employees as stipulated in the certified agreement.

The court ordered that the termination of the agreement was not valid and reinstated the terms of the 1997 agreement. Assert Services Incorporated was also required to compensate the affected employees for any losses incurred due to the improper termination process. This decision reinforces the importance of adhering to procedural fairness in employment agreements and highlights the court's role in protecting employee rights under industrial legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established