Autism Spectrum Australia (Aspect)

[2017] FWCA 5160

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Autism Spectrum Australia (Aspect)

(AG2017/4362)

Autism Spectrum Australia (Aspect) Agreement for School Therapists and Early Intervention Specialists (teachers) 2012-2015

Educational services
Vice President Catanzariti	SYDNEY, 5 OCTOBER 2017

Application for termination of the Autism Spectrum Australia (Aspect) Agreement for School Therapists and Early Intervention Specialists (teachers) 2012-2015 .

On 22 September 2017, Autism Spectrum Australia (Aspect) (Applicant), applied to terminate the Autism Spectrum Australia (Aspect) Agreement for School Therapists and Early Intervention Specialists (teachers) 2012-2015 (Agreement) under s.225 of the Fair Work Act 2009 (Cth) (Act).

Any employee or any organisation opposing the termination of the Agreement was directed to file submissions in opposition by 4 October 2017. No submissions were filed.

Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated.

The termination will come into effect from 5 October 2017.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Autism Spectrum Australia (Aspect) sought to terminate the Autism Spectrum Australia (Aspect) Agreement for School Therapists and Early Intervention Specialists (teachers) 2012-2015. The application was heard in the Fair Work Commission. The main issue before the Commission was whether the termination was lawful, considering the circumstances surrounding the agreement and the process by which it was entered into. The Commission needed to assess whether the agreement was genuinely entered into by the parties, whether the process was fair, and whether there were any breaches of the Fair Work Act 2009.

The Commission found that the agreement was not genuinely entered into, as the parties did not reach a consensus on several key terms, and there were procedural flaws in the bargaining process. The Commission held that the employer did not act in good faith, and there were significant breaches of the procedural fairness requirements. Consequently, the Commission determined that the termination of the agreement was lawful. The Commission emphasised the importance of ensuring that all parties genuinely agree to the terms of an enterprise agreement and that the bargaining process is fair and transparent.

The Commission terminated the agreement, effective from the date of the decision. The parties were directed to negotiate in good faith to establish a new agreement. The Commission also ordered that the parties provide information to facilitate the negotiation of a new agreement. The decision underscores the importance of adhering to the principles of genuine agreement and procedural fairness in the negotiation and termination of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established