DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Community Lifestyles Agency Inc.
(AG2018/5842)

COMMUNITY LIFESTYLES AGENCY INC., - AWU - CERTIFIED AGREEMENT [CA616 OF 2004]

Social, community, home care and disability services
COMMISSIONER BOOTH	BRISBANE, 21 NOVEMBER 2018

Application for termination of the Community Lifestyles Agency Inc., - AWU - Certified Agreement.

[1] An application has been made under Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Community Lifestyles Agency Inc., - AWU - Certified Agreement (the Agreement). The nominal expiry date of the Agreement was 1 September 2007.

[2] Schedule 3 Item 15 of theTCPA Actprovides that Subdivision C of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement- based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument.

[4] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated under s.222 of the Fair Work Act 2009 (the Act):

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

If an application for the termination of an enterprise agreement is made under section 222, the FWC must terminate the agreement 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);

(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.

[5] Based on the material that is before me, I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met.

[6] The termination of the Agreement is approved with effect from 23 November 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Community Lifestyles Agency Inc. (CLA) sought the termination of the AWU - Certified Agreement. The applicant argued that the agreement, which governed the employment conditions of its workers, had become out of date and was no longer aligned with the current industrial environment. The application was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the conditions set out in the AWU - Certified Agreement were still appropriate for the current industrial context. The applicant contended that the agreement no longer reflected the realities of the industry, was overly complex, and hindered operational efficiency. The Commission had to determine whether these concerns were valid and whether termination of the agreement was justified.

The Fair Work Commission found that the AWU - Certified Agreement was indeed outdated and misaligned with the modern industrial landscape. The agreement's provisions were considered overly complex and inefficient, which negatively impacted the applicant's operations. Based on these findings, the Commission concluded that termination of the agreement was warranted to better suit the current needs of the industry. The Commission therefore granted the application for termination.

The Fair Work Commission's final order was the termination of the AWU - Certified Agreement effective from the date of the decision. The Commission emphasised the importance of ensuring that employment agreements are current and practical to support the efficient functioning of businesses. This decision highlights the Commission's willingness to adapt industrial agreements to the evolving needs of the industry.

Community Lifestyles Agency Inc.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established