Community Care and Transport Incorporated T/A Community Care and Transport

[2022] FWCA 2998

[2022] FWCA 2998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Community Care and Transport Incorporated T/A Community Care and Transport

(AG2022/3202)

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 31 AUGUST 2022

Application for termination of the Yorke Peninsula Community Transport Incorporated Community Service Workers Enterprise Agreement No 01

1. On 1 August 2022, Community Care and Transport Incorporated T/A Community Care and Transport (the Applicant) filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Yorke Peninsula Community Transport Incorporated Community Service Workers Enterprise Agreement No 01 (the Agreement).

1. The Agreement has a nominal expiry date of 22 June 2018. The Agreement has now passed its nominal expiry date.

1. Section 226 of the Act states:

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.

1. I have considered the information provided in the application pursuant to section 225 of the Act. This includes the Statutory Declaration by Mr David McDonald, Chief Executive Officer of the Applicant, dated 1 August 2022. Mr McDonald makes the following submissions in relation to the approval of termination:

   ·   The Social, Community, Home Care, and Disability Services Industry Award 2010 [MA000100] is incorporated into the Agreement and the employer has ensured that the Community Service Employee pay rates and changes to the Award since the Agreement was approved on 5/10/16 have been applied to each employee.

   ·   In a practical sense, there is simply no need for the Agreement to continue to be in force. The views of all employees have been sought in person and via email, and they have strongly supported termination of the agreement.

2. Accompanying the Statutory Declaration was advice from all the employees covered by the Agreement that they supported the termination of the Agreement. Despite this, after reviewing the information that was provided to the employees when seeking their views, it became clear that the information did not accurately reflect the effect that terminating the Agreement would have on the employees. As such, I was not satisfied that I could take into account the employees’ support for termination for the purpose of s.226(b)(i) of the Act.   

1. To remedy this, on 23 August 2022, my Associate sent a Notice of Listing to all employees covered by the Agreement for a conference to be held on 30 August 2022. In the email, it was noted that I was required to consider the views of the employees covered by the Agreement, and that they were invited to attend the conference and provide their views on the potential termination of the Agreement.

1. It was additionally noted that I would use the conference to explain, in detail, the effect that a termination would have on their entitlements and conditions of employment, and that I would invite questions from all employees about any concerns they may hold in relation to the proposed termination.

1. Six employees attended the conference on 30 August 2022. After I had explained the effect of the termination, all of the employees that attended the conference confirmed that they were in favour of terminating the Agreement.

1. I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer and employees covered by the agreement and the effect that the termination will have upon them.

1. A copy of this decision must be served by the Applicant upon all employees previously covered by the Agreement.

1. In accordance with section 224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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