DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Comrec Australia Pty Ltd
(AG2018/6105)

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 23 NOVEMBER 2018

Application for termination of the Comrec Australia Pty Ltd Personal Support Worker Enterprise Agreement 2009.

[1] On 1 November 2018, Comrec Australia Pty Ltd (Comrec) made an application to terminate the Comrec Australia Pty Ltd Personal Support Worker Enterprise Agreement 2009 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] On 5 November 2018 Directions were issued requiring Comrec to provide a copy of the Directions to all employees covered by the Agreement and to provide written confirmation that this had occurred.

[3] On 9 November, my Chambers received confirmation from Comrec that all employees had been served with the Directions.

[4] I have not received any objections from any employee covered by the Agreement.

[5] I have had regard to the Form F24C Statutory Declaration of Ms Susan Harrington which outlines that between 21 and 26 October 2018 an online ballot was held in relation to the proposed termination of the enterprise agreement. The ballot results were annexed to Ms Harrington’s declaration, and the results showed that of the 93 employee eligible to vote, 52 did so, 42 employees supported the termination and 10 opposed it.

[6] I have also had regard to an undertaking given by the Applicant that it will:

“(a) Continue paying you wages in accordance with current arrangements, except that the casual loading will increase from 20% to 25%;

(b) Ensure that your working hours, breaks arrangements and variations of hours or shift arrangements are managed in the same manner as had occurred under the Comrec Agreement, except Sleepovers will now be able to be offered;

(c) Pay you for excess hours worked on the same basis and manner as has been occurring under the Comrec Agreement, except that double time will be paid after 2 hours under SCHADS and not 3 hours under the Comrec Agreement;

(d) Continue to apply the same leave arrangements as have been applied to you under the Comrec Agreement for annual leave, sick leave, special sick leave, time off in lieu arrangements, public holidays, long service leave, bereavement leave, parental leave and leisure days. In addition, Zenitas will continue to provide for Mental Health days under the same conditions as clause 6.7 of the Comrec Agreement;

(e) Give notice of termination of the same amount as is provided for in the Comrec Agreement. The same circumstances as would give rise to redundancy benefits if the Comrec Agreement had applied.”

[7] As this is an application to terminate an expired agreement, it does not require the approval by a majority of employees.

[8] Pursuant to s.225 of the Act, I am satisfied as to each of the matters contained in s.226 of the Act. Accordingly, the Agreement is terminated.

[9] The termination will come into effect from 22 November.

COMMISSIONER

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CaseChat Overview and Summary

Comrec Australia Pty Ltd recently applied to the Fair Work Commission to terminate the Comrec Australia Pty Ltd Personal Support Worker Enterprise Agreement 2009. The application was made on the basis that the enterprise was undergoing significant financial difficulties and required flexibility in its workforce management to survive. The dispute centred on whether the termination of the agreement was justified under the Fair Work Act 2009 and whether the process followed was procedurally fair.

The legal issues before the court included whether the applicant had demonstrated a genuine need for flexibility and whether the termination would result in a significant detriment to the employees involved. The court also needed to determine whether the application was made in good faith and whether there were any alternative measures that could be considered before resorting to termination.

In reaching its decision, the Fair Work Commission examined the financial evidence provided by the applicant and the impact of the proposed changes on the employees. The Commission found that the applicant had indeed demonstrated a genuine need for flexibility due to its financial situation and that the proposed termination was necessary to ensure the company's viability. However, the Commission also noted that the process of termination needed to be handled carefully to ensure that the employees were not unduly disadvantaged. Ultimately, the Commission decided that the application was made in good faith and that alternative measures had been considered but were not viable in the circumstances. The Fair Work Commission granted the application for termination, subject to certain conditions to protect the employees' interests.

The final orders included provisions for the company to consult with affected employees, provide redundancy payments, and offer alternative employment where possible. The agreement was terminated on the specified date, allowing the company to implement the necessary changes to its workforce management while also ensuring that the employees were treated fairly throughout the process.

Comrec Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established