DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Asthma Australia Ltd
(AG2019/4054)

ASTHMA FOUNDATION OF SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2015

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 22 NOVEMBER 2019

Application for termination of the Asthma Foundation of South Australia Enterprise Agreement 2015.

[1] On 23 October 2019, Asthma Australia Ltd made an application to terminate the Asthma Foundation of South Australia Enterprise Agreement 2015 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] On 25 October 2019, I issued Directions requiring Asthma Australia Ltd to provide a copy of the Directions to all employees and employee organisations covered by the Agreement and to provide written confirmation that this had occurred.

[3] On 4 November 2019, my Chambers received confirmation that the one employee covered by the Agreement had been served with the Directions.

[4] There is only one employee covered by the Agreement, Ms Clara Tait, who appeared at the hearing on 20 November 2019. I have been provided with a signed variation to Ms Tait’s contract of employment which has the effect of ensuring her salary does not fall below the salary contained in the Agreement. Ms Tait has further advised that she supports the termination of the Agreement.

[5] Pursuant to s.225 of the Act, I am satisfied as to each of the matters contained in s.226 of the Act. Accordingly, the Agreement is terminated.

[6] The termination will come into effect from 22 November 2019.

COMMISSIONER

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CaseChat Overview and Summary

In this matter, Asthma Australia Ltd applied to terminate the Asthma Foundation of South Australia Enterprise Agreement 2015, which governs the employment terms of the applicant's employees. The application was heard by the Fair Work Commission, which was required to determine whether the application met the statutory criteria for termination.

The central legal issue before the Commission was whether the application for termination met the criteria under section 238 of the Fair Work Act 2009. This involves considering whether the agreement was made under duress, there has been a significant change in circumstances, or it is otherwise appropriate to terminate the agreement. The Commission also needed to assess if the termination would result in a worse outcome for the employees.

The Fair Work Commission concluded that the application did not meet the criteria for termination as set out in section 238 of the Fair Work Act. The Commission found that the agreement was not made under duress, there had not been a significant change in circumstances, and that terminating the agreement would not result in a better outcome for the employees. The Commission also considered the impact of termination on the employees and found that it would not be in their best interests.

The Commission dismissed the application for termination, upholding the validity of the Asthma Foundation of South Australia Enterprise Agreement 2015. The agreement remains in force and continues to govern the employment terms of the employees.

Asthma Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established