Carers and Disability Link Incorporated T/A Carers and Disability Link

[2020] FWCA 3025

[2020] FWCA 3025

FAIR WORK COMMISSION

DECISION

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

Carers and Disability Link Incorporated T/A Carers and Disability Link
(AG2020/998)

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 10 JUNE 2020

Application for termination of the Carers’ Link Barossa and Districts Incorporated - Enterprise Agreement 2005.

[1] On 7 April 2020, Carers and Disability Link Incorporated T/A Carers and Disability Link made an application pursuant to Schedule 3 item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Carers’ Link Barossa and Districts Incorporated – Enterprise Agreement 2005 (the Agreement). The effect of the Transitional Act is that the application is dealt with as if it were made under Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act).

Relevant Legislation

[2] Sections 223 and 223 of the Act are relevant to this application.

[3] Sections 222 and 223 state:

“222 Application for the FWC's approval of a termination of an enterprise agreement

Application for approval

(1)  If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)  The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)  The application must be made:

(a)  within 14 days after the termination is agreed to; or

(b)  if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a)  the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b)  the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c)  the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)  the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[4] The Agreement is a collective agreement-based transitional instrument with a nominal expiry date of 9 August 2007.The Agreement covers 46 employees.

[5] Attached to the application was a Statutory Declaration of Ms Vicki Williamson, Chief Executive Officer, which is relevantly summarised as follows:

•  The Applicant was intending on ‘merging’ operations with Country North Community Services on 1 July 2020.

•  As a result of the NDIS costing approach, the Applicant’s financial position was such that it could not afford to provide better conditions than that contained in the Social, Community Home Care and Disability Services Industry Award 2010 (SCHADS Award).

•  A copy of the Agreement, the SCHADS Award and a table had been provided to all employees and meetings to discuss the proposal were conducted.

•  A subsequent vote of employees (as a whole) approved the termination of the Agreement.

[6] On 9 April 2020, I directed the Applicant to advise the Commission of any disadvantage to employees that may result from termination of the Agreement and (if any) how this will be addressed.

[7] On 17 April 2020, the Applicant provided the Commission with the following information:

“Disadvantages to employees that may result from termination of the Agreement that CADL has identified include:

Termination of employment: a SACS employee with not more than one year’s service would be entitled to one week’s notice rather than two;

Redundancy: Employees over 45 with over 10 years’ service would get four weeks’ less redundancy pay;

Ordinary hours are wider under the SCHADS Award;

Saturday work would be payable at 1.5x rather than 1.5x for the first three hours (SACS) or four hours (clerks) and 2x thereafter;

Overtime: SACS employees below Level 5 accrue TOIL on weekends and public holidays at a more generous rate than the SCHADS Award; and

Shiftwork: The SACS Award provides for a 15% afternoon loading and the SCHADS Award pays 12.5%.”

[8] On 27 May 2020, I conducted a Hearing by telephone with the parties. The Applicant provided a written submission dated 17 April 2020. I raised a concern that at the time the employee ballot was conducted, the information provided to the employees did not disclose the disadvantage that would result from the termination of the Agreement. I was concerned that ‘employees’ agreement’ may not have been ‘genuine’ in the circumstances.

[9] The Applicant agreed to advise all employees of the potential disadvantage and conduct a further ballot. My Chambers acted as the ‘returning officer’ to ensure anonymity as the COVID-19 restrictions led to an email ballot as the most appropriate in the circumstances. The ballot was conducted from 28 May 2020 to 4 June 2020.

[10] On 5 June 2020, I was advised that 86% of the employees who cast a valid vote approved the termination of the Agreement.

[11] I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreement.

[12] The termination will come into effect from the date of this decision.

COMMISSIONER

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