Connecting2Australia

[2021] FWCA 6137

[2021] FWCA 6137

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
(AG2021/5896)

MOONYA INC DAY SERVICES COLLECTIVE AGREEMENT 2006-2009

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

Application for termination of the Moonya Inc Day Services Collective Agreement 2006-2009

[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 Moonya Inc Day Services Collective Agreement 2006-2009 (Agreement). The Agreement is expressed to cover Moonya Incorporated, a business that has been acquired by the Applicant, and employees engaged to perform duties in relation to providing support, education, training, community inclusion and participation and other assistance for people with disabilities. The Australian Education Union (AEU) is a party to the Agreement.

[2] The Agreement is an instrument that was made under the Workplace Relations Act 1996. It passed its nominal expiry date in 2009. 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, the company’s solicitor, 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), and that it would be in the public interest for the employees to be covered by the Award in the absence of any further enterprise agreement being made. She stated that the two employees covered by the Agreement are paid wages that exceed those in the Agreement and that there is no utility in maintaining the Agreement.

[6] On 6 September 2021, I directed the Applicant to provide employees covered by the Agreement with a copy of the application, as well as with correspondence from the Commission advising employees that they could send to my chambers any views they may have about the application to terminate the Agreement by Thursday, 23 September 2021. The Applicant confirmed at the hearing that it had complied with my directions.

[7] The AEU initially opposed the application on the basis that the Agreement contained a number of provisions that provide important benefits to employees. The Applicant and the AEU subsequently had discussions with a view to reaching an agreement about the conditions of employment that would continue to apply to existing employees following a termination of the Agreement. At the hearing, the parties advised the Commission that they had reached an agreement pursuant to which the Applicant would write letters to employees and undertake to continue to provide certain benefits contained in the Agreement, and that these letters had been sent. The AEU confirmed that it therefore no longer opposed the application to terminate the Agreement.

[8] Returning to s 225, I note that at the time of the application, the Applicant was an employer covered by the Agreement, and therefore had the necessary standing under
s 225(a) to bring the application. The view of the employer is that the Agreement should be terminated. The AEU does not oppose the application. My chambers did not receive any views from employees in relation to the application. The Applicant and the AEU have advised the Commission that no employees have conveyed to them any views about the application.

[9] Based on the information contained in the application and the declaration and based also on the submissions of the parties to the Agreement, 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 to terminate the Agreement. 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.

[10] 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

<AC310189  PR734607>