Cairns Community Legal Centre Incorporated
[2009] FWA 822
•27 OCTOBER 2009
[2009] FWA 822 |
|
DECISION |
Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement
(AG2009/16248)
CAIRNS COMMUNITY LEGAL CENTRE INCORPORATED AGREEMENT 2006
(ODN AG2006/2824) [AG846611]
Health and welfare services | |
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 27 OCTOBER 2009 |
Termination of the Cairns Community Legal Centre Incorporated Agreement 2006 (a Pre-Reform Certified Agreement).
[1] On 12 October 2009 the Cairns Community Legal Centre Incorporated filed an Application addressed to the Australian Industrial Relations Commission pursuant to Schedule 7 of the Workplace Relations Act 1996 to terminate the Cairns Community Legal Centre Incorporated Agreement 2006 (“the Agreement”).
[2] The Agreement is a pre-reform certified agreement that has a nominal expiry of 30 June 2008.
[3] I am of the view that this Application should have been filed in accordance with s.222 of the Fair Work Act 2009. The reasons for this are below.
[4] For purposes of Item 4(1)(a) of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the FWT&CA Act”), the Agreement is a “pre-reform certified agreement” as it was made under Division 2 of the Part VIB of Workplace Relations Act 1996 (“the WR Act”) and given the identity as such under Schedule 7 of the WR Act.
[5] Item 2 (2)(g) of Part 2, Schedule 3 of the FWT&CA Act further defines the Agreement as a “WR Act instrument”.
[6] Upon the repeal of the WR Act, Item 2(3) of Part 2, Schedule 3 the FWT&CA Act identifies the Agreement as a “transitional instrument”, and by Item 2(5) of the FWT&CA Act as a “collective agreement-based transitional instrument”.
[7] Item 9 of Part 3, Schedule 3 to the FWT&CA Act states a transitional instrument can only be terminated in limited circumstances, including in accordance with a “provision of this Part or the regulations”.
[8] Item 16(1) of Part 3, Schedule 3 to the FWT&CA Act makes provision for Subdivision D of Division 7 of Part 2-4 of the FW Act to apply to an application to terminate the agreement.
[9] Subdivision D of Division 7 of Part 2-4 of the FW Act reads as follows:
“Subdivision D—Termination of enterprise agreements after nominal expiry date
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.
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.
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.”
[10] Ms Giselle Negri, the Principal Solicitor / Co-ordinator of the Applicant provided a Statutory Declaration attesting to the fact that a valid majority of employees voted unanimously to approve the termination of the Agreement. Further the Australian Municipal, Administrative, Clerical and Services Union otherwise known as the Australian Services Union (who is a party to the Agreement) provided written correspondence to the Applicant stating that it had no objection to terminating the Agreement.
[11] I note that no employees of the Applicant are engaged pursuant to the terms and conditions of the Agreement.
[12] On the basis of the materials before me, I am satisfied that the requirements of s.226 of the Fair Work Act 2009 are met and the Agreement should be terminated.
[13] The termination of the Agreement comes into operation in accordance with s.227 of the Fair Work Act 2009, being today’s date.
[14] An order reflecting this decision will issue simultaneously.
SENIOR DEPUTY PRESIDENT
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