CPL - Choice, Passion, Life

[2022] FWCA 3434

[2022] FWCA 3434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

CPL - Choice, Passion, Life

(AG2022/3507)

Cerebral Palsy League Enterprise Agreement 2010 - 2013

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 25 OCTOBER 2022

Application for termination of the Cerebral Palsy League Enterprise Agreement 2010 - 2013

1. CPL – Choice, Passion, Life (CPL/the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cerebral Palsy League Enterprise Agreement 2010 - 2013 (the Agreement) after its nominal expiry date.

1. The Agreement is a single enterprise agreement and its nominal expiry date was 31 December 2012.

1. Section 225 and 226 of the Act relevantly provides:

“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.”

“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.”

Statutory Declaration

1. Mr Murray Sandon from the Applicant filed a lengthy Form F24C Statutory Declaration in support of the application to terminate the Agreement. The Statutory Declaration included a summary of the background of the Applicant. The Statutory Declaration also informed that as a result of the Agreement being in operation almost 9 years past the nominal expiry date, the Applicant has been required to offer certain terms and conditions more beneficial than the Agreement so as to retain and attract staff.

1. Mr Sandon further submitted in the Statutory Declaration that as a result of the changes to the National Disability Insurance Scheme (NDIS) and the Social, Community, Home care and Disability Services Industry Award 2010 (SCHADS Award), the introduction of a portable Long Service Leave scheme, and the introduction of the Federal Equal Remuneration order in the SCHADS Award, further inconsistencies between the SCHADS Award and the Agreement have been created.

1. Mr Sandon submitted that the termination of the Agreement and transition to the Award, would afford the Applicant a greater level of security and stability for the conditions afforded under the Award. Mr Sandon highlighted the significant changes to the industry of the Applicant since the creation and approval of the Agreement.

The Directions

1. Directions were issued on 2 September 2022 and were amended on 12 September 2022 for the Applicant to serve a copy of the F24B Application on its employees as well as a copy of the F24C Statutory Declaration and Directions. Due to the number of employees, the Directions noted that this could be fulfilled through the Applicant making the documents filed available via the Applicant’s intranet. The Directions also provided that if any employee wished to be heard on the matter, they were to file any submissions and/or evidence in relation to the Application by 28 September 2022.

1. The material indicated that the Agreement covered the following employee organisations:

·   Australian Workers’ Union (AWU);

·   Australian Municipal, Administrative, Clerical and Services Union – Queensland (Services and Northern Administrative) Branch (The Services Union);

·   Australian Municipal, Administrative, Clerical and Services Union – Queensland Together Branch (Together ASU)

Views of the parties

1. On 27 September 2022, The Services Union wrote to my chambers and indicated that they had surveyed their members and 81.5% of the members who completed the survey supported the termination of the Agreement. They also indicated that The Services Union supported the termination subject to the Memorandum of Undertakings provided by CPL with the application.

1. On 28 September 2022, Together ASU wrote to my chambers and indicated that whilst they were disappointed the employer had not made greater commitments to retain certain existing beneficial entitlements, they were supportive of the submission made by The Services Union to terminate the current Agreement.

1. On 4 October 2022, my chambers indicated to the parties that given the only views received were from the unions as outlined above, the matter would be determined on the papers.

1. To date, no material has been received from any employees of the Applicant directly to the Fair Work Commission (the Commission). However, on 11 October 2022, the Applicant advised my chambers that it had received emails from nine of its allied health employees which contained feedback about the present Application and the Form F24C that was filed by CPL and distributed to its employees as per item 1 of the Amended Directions. CPL received those nine emails through its dedicated “My Award” email account that was set-up and used as part of its consultation process relating to the proposed transition from its Agreement to the relevant modern awards. The emails set out the employee grievances in response to the application.

1. CPL submitted that to the extent that the Commission is minded to have regard to the correspondence from the nine employees, CPL wished to note that:

·   The emails have been received from 9 of the approximately 47 allied health employees currently employed by CPL;

·   The 47 allied health employees employed by CPL constitute less than 2% of CPL’s workforce (which totalled 2,799 as at 30 June 2022);

·   There is a large degree of overlap in terms of the issues raised in the emails (to the point that the emails are virtually identical);

·   Many of the issues raised in the email correspondence have previously been raised with (and responded to by) CPL as part of the consultation process, and have also already been addressed in the materials filed by CPL in this matter.

1. CPL also acknowledged that the termination of the Agreement will result in CPL’s allied health employees losing some existing entitlements, and CPL submitted that they have been candid with its workforce, the unions and the Commission about that fact. CPL submitted that it is for this reason that CPL has given a range of Undertakings to maintain employees’ hourly base rates of pay and preserve or retain other conditions.

1. CPL submitted that although these nine emails were not filed by any person in accordance with the Amended Directions, CPL is content for the Commission to have regard to the material in determining the Application, and did not propose to file any submissions in reply.

1. Further, CPL noted the following regarding the correspondence from the employees:

1. The recent emails from nine allied health employees should be viewed in the context of the materials already filed by CPL in this matter, as well as the correspondence filed by two of the relevant unions (being The Services Union and the Together Union), both of whom have indicated that they support the Application.

2. In particular, in considering the views of employees under section 226, it is notable that The Services Union indicated in their letter to the Commission dated 27 September 2022 that they had surveyed their members and “81.5% of members who completed the survey support the termination of the Agreement”.

3. Therefore, although there are a small number of employees who do not support the Application, the material before the Commission discloses that:

a.Both unions are supportive of the Application;

b.The vast majority of CPL employees are supportive of the Application; and

c.The vast majority of CPL employees stand to receive improved conditions if the Application is granted.

Undertakings

1. The Applicant provided various undertakings to the Commission if the termination were to be granted. These were:

1. CPL undertakes to maintain employee’s current hourly base rate of pay, if their rate of pay is above that of the relevant modern award;

2. CPL undertakes to continue applying the minimum hourly base rates of pay for each classification contained in the Agreement or the respective minimum hourly base rates of pay under the respective modern award, whichever is higher;

3. CPL undertakes to not reclassify any employees identified under Schedule A of the Agreement to an award classification that is more junior to the respective classification under the Agreement, even if their actual duties do align with the more junior award classification;

4. CPL undertakes to retain existing ex gratia leave entitlements for AH employees for a further one (1) year post the termination of the Agreement, to allow AH employees to use their accrued ex gratia leave as they transition to the HPSS Award entitlements;

5. CPL undertakes to grandfather the sleepover allowance provided under the Agreement until the allowance under the SCHADS allowance matches or exceed the Agreement allowance;

6. CPL undertakes to retain its current capacity assessments under the Agreement for Supported Wage employees;

7. CPL undertakes to meet the salary packaging costs for employees for a further one (1) year following the termination of the Agreement, after which, the costs will be met by individual employees; and

8. CPL undertake to continue to give effect to clause 10 of the Agreement following the termination of the Agreement.

Conclusion

1. I have considered all the material filed in this matter, including the emails from the nine allied health employees of the Applicant. Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the material before me, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The Applicant has nominated 17 November 2022 as a termination date, and given the circumstances, I consider that to be an appropriate date. Accordingly, the termination will take effect from 17 November 2022.

1. An order giving effect to this decision is separately issued in PR747134.

COMMISSIONER

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