Bennettcare Investments Pty Ltd T/A All About Caring

[2012] FWA 6475

[2012] FWA 6475

FAIR WORK AUSTRALIA

DECISION

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

Bennettcare Investments Pty Ltd T/A All About Caring
(AG2012/9080)

Health and welfare services
VICE PRESIDENT WATSON	SYDNEY, 9 AUGUST 2012

Application to terminate the All About Caring Employee Collective Agreement 2009 – whether termination of the agreement contrary to the public interest – whether it is appropriate to terminate the agreement – Fair Work (Transitional Provisions and Consequential Amendments Act) 2009 - Schedule 3, Item 16 – Fair Work Act 2009 - ss.225, 226.

Introduction

[1] This decision concerns an application by Bennettcare Investments Pty Ltd trading as All About Caring (All About Caring) to terminate the All About Caring Employee Collective Agreement 2009 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] At the hearing of the matter on 12 July 2012, Ms D Bennett appeared on behalf of All About Caring. Following the hearing of the matter directions were made requiring All About Caring to serve a copy of the transcript of proceedings, its submissions and the directions on each of its employees who are covered by the Agreement. The employees were provided with an opportunity to contact my chambers by the 24 July 2012 to express their views in relation to the termination of the Agreement. No employees have contacted my chambers to express their views concerning the termination of the Agreement.

The relevant legislation

[3] The application has been made under Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), which 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.

[4] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. Section 225 of the Act states:

“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;

(c) an employee organisation covered by the agreement.”

[5] Section 226 states when Fair Work Australia must terminate an enterprise 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.”

[6] The Agreement is a collective agreement-based transitional instrument. The Agreement operated from the date of filing with the Workplace Authority and has a nominal term of three years: cl. 2.

[7] All About Caring submits that termination of the Agreement is not contrary to the public interest, that since implementing the terms of the Agreement the financial viability of the organisation has been adversely effected, particularly due to funding arrangements in the sector and that should the Agreement not be terminated All About Caring would cease trading resulting in its employees losing their jobs. It submits that the possibility that there may be a small number of resignations and reduction in hours due to assimilation into the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) 1 is outweighed by job security considerations.

Conclusions

[8] No submissions that termination of the Agreement would be contrary to the public interest have been received. No employees have made submissions concerning the termination of the Agreement.

[9] I have taken all of the circumstances in this matter into account and had regard to the views of All About Caring. I note its submissions that funding arrangements have adversely affected its financial viability. If the Agreement is terminated the employees will be entitled to the benefits of the Award.

[10] In all the circumstances I am satisfied that termination of the Agreement would not be contrary to the public interest. I issue an order terminating the Agreement concurrent with the handing down of this decision. 2

VICE PRESIDENT WATSON

Appearances:

D. Bennett for Bennettcare Investments Pty Ltd trading as All About Caring

Hearing details:

2012.
Sydney.
July 12.

 1   MA000100

 2   PR527672

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<Price code A, AC324458  PR527329 >