Australian Red Cross Society

[2020] FWCA 2352

[2020] FWCA 2352

The attached document wholly replaces the document previously issued with the code [2020] FWC 2311 on 4 May 2020 to correct document referencing.

Deputy President Masson’s Chambers

5 May 2020

[2020] FWCA 2352

FAIR WORK COMMISSION

DECISION

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

Australian Red Cross Society
(AG2020/724)

KATHERINE, RED CROSS, AGED CARE RESIDENCE, ENTERPRISE AGREEMENT 2000

Aged Care

DEPUTY PRESIDENT MASSON MELBOURNE, 4 MAY 2020

Application for termination of the Katherine, Red Cross, Aged Care Residence, Enterprise Agreement 2000.

[1] The Australian Red Cross Society (the Applicant) has applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Katherine, Red Cross, Aged Care Residence, Enterprise Agreement 2000 (the Agreement). The Agreement is expressed to cover the Applicant, the relevant employees within the scope of the Agreement and the United Workers Union (the UWU). The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[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] The application filed was accompanied by a Statutory Declaration of Mr Adrian Prouse (Head of People & Culture) for the Applicant. Mr Prouse variously deposed in the Statutory Declaration and supporting documentation that confirmed that;

● the age of the Agreement, its incorporation of a pre-reform award dating to 1998 and its interaction with the Aged Care Award 2010 (the Award) are confusing for employees with some terms and conditions difficult to comprehend;

● the Agreement does not reflect contemporary workplace or relevant standards and requirements now reflected in the Act; and

● termination of the Agreement would not result in reduced terms and conditions of employment and that while many benefits would be retained some benefits would be enhanced including various allowances.

[6] Mr Prouse also detailed the consultation that the Applicant had engaged in with staff which relevantly included;

● information and consultation session on 14 February 2020;

● provision of documentation packs to staff that included information on the key differences between the Agreement and the Award which would apply if the Agreement were terminated;

● an email to staff following the 14 February 2020 meeting including a copy of the Agreements and links to the incorporated pre-reform award, the Award and a survey that allowed them to express their views on the proposed termination of the Agreement; and

● the consultation period with staff remained open until 28 February 2020.

[7] According to Mr Prouse, the Applicant also contacted the UWU in early February 2020 to advise that it was considering termination of the Agreement. On 17 February 2020 the Applicant corresponded further with the UWU and in doing so provided detailed information on the proposed termination of the Agreement. On being invited to provide its views on the proposal the UWU did not express any views to the Applicant on the proposed termination of the Agreement.

[8] In dealing with the application, directions were sent out by my Chambers on the 20 March 2020, which stipulated that if employees of the Applicant covered by the Agreement or the UWU wished to make submissions on the termination of the Agreement they were to do so by close of business 17 April 2020. No written submissions were provided by the Union or any employees covered by the Agreement.

Consideration

[9] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

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

[11] Based on the material contained in and attached to the employer’s declaration filed with the application, 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 s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am consequently satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[12] The termination will operate from 3 August 2020 and a separate order giving effect to my decision will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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