Central Australian Affordable Housing Company Ltd (CAAH)

[2019] FWCA 8028

[2019] FWCA 8028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Central Australian Affordable Housing Company Ltd (CAAH)
(AG2019/4361)

CENTRAL AUSTRALIAN AFFORDABLE HOUSING COMPANY LTD ENTERPRISE AGREEMENT 2014 - 2017

Northern Territory
COMMISSIONER SPENCER	BRISBANE, 25 NOVEMBER 2019

Application for termination of the Central Australian Affordable Housing Company Ltd Enterprise Agreement 2013-2016.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Central Australian Affordable Housing Company Ltd (the Applicant) to terminate the Central Australian Affordable Housing Company Ltd Enterprise Agreement 2014-2017 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date.

[3] Further, ss.225 and 226 of the FW Act relevantly provide:

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 the 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 the FWC must terminate an enterprise agreement

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

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

(b) the 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.

[4] The United Workers Union, known as United Voice at the time the Agreement was approved, is the employee organisation covered by the Agreement.

[5] Mr John McBryde, the Chief Executive Officer of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Central Australian Affordable Housing Company Ltd Enterprise Agreement 2014-2017. The Applicant seeks the termination of the Agreement as it no longer suits the organisational or administrative need of the business. Mr McBryde confirmed that upon termination of the Agreement, employees would be covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).

[6] Initial Directions were issued on 15 November 2019, requiring that the Applicant provide further information addressing the criteria in s.226 of the Act.

[7] The Applicant’s Representative, Mr Adren Choon from Lewis Holdway Lawyers, sought further information on 19 November 2019 in relation to the material, the Commission required for consideration.

[8] Comprehensive Directions were issued on 20 November 2019 requiring that the Applicant provide further information addressing s.226 of the Act. On 22 November 2019, the Applicant’s Representative filed an affidavit of Mr McBryde which confirmed that:

•  The Agreement’s nominal expiry date has passed;

•  The Applicant employs 11 individuals whom would be covered by the Award;

•  Termination of the Agreement is not contrary to the public interest, as it would allow for more favourable rates of pay to apply to employees covered by the Award.

•  No financial detriment will be suffered by the employees covered by the Agreement. Mr McBryde submitted a comparative table illustrating employees’ rates of pay will either be maintained or improved under the Award. Mr McBryde further submitted the Agreement provided additional entitlements and benefits that were not covered by the Award. Undertakings have been provided to employees that the additional entitlements and benefits will continue to apply in individual employment agreement or in a new employee benefit policy.

•  Each employees was provided, by email, a copy of:

•  The application to terminate the Agreement;

•  The Commission’s Directions;

•  The Award;

•  The National Employment Standards;

•  A document providing a comparison between the wages applicable under the Agreement and the Award;

•  An undertaking from the Applicant that the additional entitlements and benefits (as set out in paragraph 20 of Mr McBryde’s affidavit) provided under the Agreement will continue to apply.

•  The employees’ views were sought, with two emails sent by the Applicant seeking such feedback. Ten of the eleven employees provided responses, indicating they agreed with the proposal to terminate the Agreement.

Conclusion

[9] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, and support of the United Workers Union the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 25 November 2019.

[10] I Order accordingly.

COMMISSIONER

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