Australian Red Cross Society (“Red Cross”)

[2021] FWC 614

[2021] FWC 614

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

Australian Red Cross Society (“Red Cross”)
(AG2020/4078)

AUSTRALIAN RED CROSS - SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2002

File No. 7315 of 2002

Social, community, home care and disability services
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 8 FEBRUARY 2021

Application for termination of the Australian Red Cross - South Australia: Enterprise Agreement 2002

[1] On 17 December 2020 Australian Red Cross Society (Red Cross or the applicant employer) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) terminate the Australian Red Cross - South Australia Enterprise Agreement 2002 (the Agreement).

[2] In support of the application, Alexandra Lawson, Manager of People and Culture for South Australia and Queensland of the Red Cross, lodged a statutory declaration with the Commission dated 17 December 2020 which says that the Agreement covers and applies to persons employed by Red Cross in South Australia.

[3] Item 16, Schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) applies to applications to terminate collective agreement-based transitional instruments which have passed their nominal expiry date.

[4] I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed. In fact, its nominal expiry date was 30 June 2004, more than sixteen years ago.

[5] The declaration says that, should the Agreement be terminated, these employees would be covered by one of three modern awards, namely: the Social, Community, Home Care and Disability Services Industry Award 2010, the General Retail Industry Award 2020, or the Educational Services (Post-Secondary Education) Award 2020.

[6] I issued Directions concerning the application on 30 December 2020 which provided an opportunity for any employee under the Agreement and the Community and Public Sector Union (CPSU), as the employee organisation with an interest in the Agreement, to oppose or otherwise express a view on the application. I also directed that the Directions (including listing details) be advised to employees and the CPSU.

[7] On 18 January 2021 the applicant employer filed a further statutory declaration of Ms Lawson confirming that the Directions were provided to the employees and CPSU. Neither the CPSU or any employee has elected to participate in these proceedings, either by submission or appearance.

[8] I heard the matter by telephone on 8 February 2021 at which time I received submissions from Stephanie Gheller, internal legal counsel, and clarification of certain matters from Ms Lawson.

[9] Section 226 of the FW 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.”

[10] At the hearing Red Cross affirmed that, by virtue of paragraph 22 of Ms Lawson’s declaration of 17 December 2020, the manner in which Red Cross have advised staff that it intends to transition wages and employment conditions should the Agreement be terminated as set out in a Questions and Answers document (Annexure 4) and a Key Differences document (Annexure 5), are formal undertakings for the purpose of these proceedings.

[11] Having regard to the requirements of section 226 of the FW Act and based on the evidence and undertakings before me, including the statutory declaration of Alexandra Lawson filed in the Commission on 17 December 2020, I am satisfied that:

•  it is not contrary to the public interest to terminate the Agreement; and

•  it is appropriate to terminate the Agreement taking into account all of the circumstances.

[12] In accordance with section 227 of the FW Act, the termination will take effect from the first full pay period on or after 12.01am on 1 March 2021. An Order to this effect will be issued.

[13] Red Cross are directed to take all reasonable steps to inform affected employees and the CPSU of this Decision and the Order by no later than close of business (5.00pm ACDT) Friday 12 February 2021.

DEPUTY PRESIDENT

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