Community Support Incorporated

[2016] FWCA 1185

[2016] FWCA 1185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Community Support Incorporated
(AG2016/204)

COMMUNITY SUPPORT INCORPORATED CLERICAL ENTERPRISE AGREEMENT 2009

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 24 FEBRUARY 2016

Application for termination of the Community Support Incorporated Clerical Enterprise Agreement 2009.

[1] Community Support Incorporated (the employer) has made application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Community Support Incorporated Clerical Enterprise Agreement 2009.

[2] The Agreement was approved by Fair Work Australia on 9 December 2009, having been made by the parties during the bridging period as defined in Item 2, Part 1 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[1] The Agreement has a nominal expiry date of 31 December 2012.

[2] I am satisfied that the Applicant can make this application pursuant to Section 222 as it is an employer covered by the Agreement. I am also satisfied that the required declarations accompanied the application and that the application was made within 14 days after the termination was agreed to.

[3] I must approve the termination if the following conditions set out in Section 223 of the Act are met:

"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] A Form 24A - Statutory Declaration has been provided by the Applicant employer and the material set out in the declaration confirms that the requirements in Section 223(a) and (b) have been met. In particular, I am satisfied that the employees covered by the Agreement were given a reasonable opportunity to decide whether to support the proposed termination, and a majority of them did so. Further, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination.

[5] I note that the employer has provided an undertaking that the more generous redundancy provisions of the 2009 Agreement will continue to apply to all existing employees. This will also be confirmed in written contracts of employment to be issued upon the termination of the Agreement.

[6] Upon termination of the Agreement, the parties will be covered by the relevant Modern Award and I note that this is a more contemporary instrument that the safety net originally applied to its approval. Further, the adoption of the Modern Award for these parties will mean that all clerical employees of the employer will be covered by the same instrument.

[7] In these circumstances, I am satisfied that it is appropriate to terminate the Agreement.

[8] The termination shall operate on and from midnight on 23 February 2016.

COMMISSIONER

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