Bungala Aborigional Corporation

[2017] FWCA 2781

[2017] FWCA 2781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bungala Aborigional Corporation
(AG2017/1493)

Indigenous organisations and services
COMMISSIONER PLATT	ADELAIDE, 22 MAY 2017

Application for termination of the Bungala Aboriginal Corporation Enterprise Agreement 2002.

[1] On 28 April 2017, Bungala Aboriginal Corporation filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Bungala Aboriginal Corporation Enterprise Agreement 2002 (the Agreement).

[2] The Agreement was originally approved by the Industrial Relations Commission of South Australia and is now classified as a collective agreement-based transitional instrument by virtue of Schedule 3, item 2(5)(c) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[3] The application was made using the Form F24B – Application for termination of an enterprise agreement after the nominal expiry date pursuant to s.225 of the Act. As the Agreement is a collective agreement-based transitional instrument the application to terminate should have been made using the Form F28 – Application for termination of collective agreement-based transitional instrument pursuant to Item 16 of Schedule 3 of the Transitional Act. The applicant appears to have filed the incorrect application form.

[4] Despite the application being made in a different form, the information provided allows me to determine if the requirements in Subdivision D of Division 7 of Part 2-4 of the Act have been met. In accordance with s.586(b) of the Act, I waive the irregularity and will deal with the application as if it had been made on a Form F28 pursuant to Item 16 of Schedule 3 of the Transitional Act.

[5] The provisions of Subdivision D of Division 7 of Part 2-4 of the Act apply in this matter and provide as follows:

“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 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.

226 When FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[6] This application has been made by the employer covered by the Agreement.

[7] Having regard to the requirements of s.226 of the Act and the material before me, 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 the circumstances including the views of the employees and the employer, noting that there were no employee organisations covered by the Agreement.

[8] In accordance with s.227 of the Act, the termination will take effect from 22 May 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593093>