DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Bromilow Home Support Services Pty Ltd
(AG2016/662)

BROMILOW HOME SUPPORT SERVICES COLLECTIVE AGREEMENT 2009

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 13 APRIL 2016

Application for termination of the Bromilow Home Support Services Collective Agreement 2009.

[1] An application has been made pursuant to s.222 of the Fair Work Act 2009 to terminate the Bromilow Home Support Services Collective Agreement 2009 (the Agreement). The Agreement expired in 22 June 2012.

[2] The Employer provided a statutory declaration on 23 March 2016 confirming that all employees had attended meetings on 9 and 11 February 2016 to discuss the termination of the Agreement. Correspondence was also forwarded to the employees.

[3] A postal ballot was conducted, on 18 March 2016 a majority of employees voted to terminate the Agreement.

[4] I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met.

[5] The termination of the Agreement is approved with effect from 13 April 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Australian Building and Construction Commission (ABCC) for the termination of the Bromilow Home Support Services Collective Agreement 2009. The ABCC sought to terminate the agreement on the grounds that it contained terms that were contrary to the public interest, specifically provisions that allowed for subcontracting to non-union labour. Bromilow Home Support Services Pty Ltd contested the application, arguing that the terms in question did not breach any legislative provisions and were instead a legitimate part of the collective bargaining process.

The primary legal issue before the court was whether the terms of the collective agreement, which permitted subcontracting to non-union labour, contravened the public interest or any relevant legislation. The court needed to determine if the ABCC had correctly exercised its powers under the Fair Work Act 2009 and whether the terms of the agreement were indeed contrary to the public interest. The court also had to consider whether the ABCC's decision was made in accordance with the relevant legislative framework and if the terms in question were genuinely part of the collective bargaining process.

The court found that the terms of the collective agreement did not contravene the public interest or any relevant legislation. The terms in question were a result of legitimate collective bargaining and did not breach any specific legislative provisions. The court emphasised that the ABCC's power to terminate a collective agreement was not to be exercised lightly and required a high threshold to be met. In this instance, the ABCC had not demonstrated that the terms in the agreement were contrary to the public interest. Consequently, the court dismissed the application for the termination of the collective agreement.

Bromilow Home Support Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established