Connecting2Australia

[2021] FWCA 6138

[2021] FWCA 6138

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Connecting2Australia
(AG2021/5897)

WOORINYAN INCORPORATED EMPLOYEE COLLECTIVE AGREEMENT 2008

Health and welfare services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 7 OCTOBER 2021

Application for termination of the Woorinyan Incorporated Employee Collective Agreement 2008

[1] This decision concerns an application made by Connecting2Australia (Applicant) under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act) to terminate the Woorinyan Incorporated Employee Collective Agreement 2008 (Agreement). The Agreement is expressed to cover Woorinyan Incorporated, a business that has been acquired by the Applicant, and supported employees as defined in clause 8 of the Agreement.

[2] The Agreement is an instrument that was made under the Workplace Relations Act 1996. It passed its nominal expiry date in 2011. The Agreement is a ‘collective agreement-based transitional instrument’ for the purposes of Item 16 of Schedule 3 of the TPCA Act. The effect of this item is that the termination provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. In short, an application may be made to terminate the Agreement under s 225 of the Act.

[3] Section 225 of the Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[4] Section 226 of the Act provides:

“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.”

[5] Ms Simone Aloi provided a declaration in support of the application, in which she stated that the Agreement contains terms and conditions that do not reflect current legislation or the underpinning award, the Social, Community, Home Care and Disability Services Industry Award 2010 (Award). She stated that there are no employees covered by the Agreement, and that, should any employees become covered by the Agreement, it would be in the public interest for them to be covered by the Award in the absence of any further enterprise agreement being made.

[6] The application was validly made by the employer covered by the Agreement. The view of the employer is that the Agreement should be terminated. The AEU advised the Commission at the hearing that it does not oppose the application. There are no employees covered by the Agreement.

[7] Based on the information contained in the application and the declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me that raises public interest considerations that might weigh against granting the application. Taking into account all of the circumstances, including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. I therefore terminate the Agreement.

[8] The termination will operate from 7 October 2021.

DEPUTY PRESIDENT

Appearances:

S. Aloi for the applicant

R. Mooney for the Australian Education Union

Hearing details:

2021

Melbourne

7 October

Printed by authority of the Commonwealth Government Printer

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