Community Support Incorporated T/A Community Support Incorporated

[2023] FWCA 2906

[2023] FWCA 2906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Community Support Incorporated T/A Community Support Incorporated

(AG2023/2672)

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 11 SEPTEMBER 2023

Application for termination of the Community Support Incorporated Support Worker Enterprise Agreement 2013

1. On 8 August 2023, Community Support Incorporated T/A Community Support Incorporated made an application for the termination of the Community Support Incorporated Support Worker Enterprise Agreement 2013 (the Agreement), an enterprise agreement that had passed its nominal expiry date, pursuant to s.222 of the Fair Work Act 2009 (the Act).

Relevant Legislation

1. Sections 222 and 223 of the Act are relevant to this application and are as follows:

“222 Application for FWA 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 FWA 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 FWA considers it fair to extend that period—within such further period as FWA allows.

223 When FWA 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, FWA must approve the termination if:

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

(d) FWA 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.”

1. The Application was made within the timeframe required.

1. Attached to the application was a statutory declaration of Ms Briegan Gligora, General Manager People and Culture, which is relevantly summarised as follows:

·  The Agreement nominal expiry date was on 31 December 2014.

·  On 14 July 2023, all employees covered by the Agreement were notified via email of the employer’s intention to conduct a vote to terminate the Agreement. Employees were advised on the impact of termination and provided with dates and times for information sessions to attend. These documents were attached to the Application.

·  On 17, 18 and 19 July 2023 information sessions were held via Microsoft Teams. The information session gave employees an opportunity to ask questions about the impact of the termination.

·  On 21 July 2023 an email was sent to employees with answers to ‘Frequently Asked Questions’ and a comparison table of the Award and the Agreement. These documents were attached to the Application.

·  From 17 to 21 July 2023, information sessions on voting process were conducted and employees were provided with voting instructions.

·  From 21 to 25 July 2023, the ballot agent (GoVote) emailed employees about the vote and sent various reminders via text message including the commencement of voting.

·  On 25 July 2023, the termination was agreed to. Of the 225 employees covered by the Agreement, 160 employees cast a valid vote and 132 (82.5%) of those persons voted to approve the termination.

1. I am satisfied that the employer complied with subsection 220(2) of the Act by giving the affected employees a reasonable opportunity to decide whether they wanted to approve the proposed termination. There are no other reasonable grounds for believing that the employees have not agreed to the termination.

1. On 25 August 2023, I issued directions requiring the application and supporting documents be served on all employees and employee organisations covered by the Agreement, so that I could seek their views in accordance with s.223(d) of the Act. The employees and employee organisations were advised to contact my Chambers if they wished to express any views.

1. No employees or employee organisations covered by the Agreement contacted my Chambers.

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

1. The termination will come into effect from the date of this Decision.

COMMISSIONER

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