CQ Nurse Pty Ltd

[2014] FWCA 7192

[2014] FWCA 7192

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

CQ Nurse Pty Ltd
(AG2014/8687)

CQ NURSE PTY LTD ADMINISTRATIVE EMPLOYEE COLLECTIVE AGREEMENT 2009

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 10 OCTOBER 2014

Application for termination of the CQ Nurse Pty Ltd Administrative Employee Collective Agreement 2009.

[1] This decision concerns an application by CQ Nurse Pty Ltd (the employer), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (the Act).

[2] The application seeks to terminate the CQ Nurse Pty Ltd Administrative Employee Collective Agreement 2009 (the Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 26 June 2014. No employee organisation was covered by the Agreement.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] A statutory declaration was received from Ms Kim Estell of the employer, dated 30 September 2014. The statutory declaration outlined the steps taken by the company to gauge the views of the employees regarding the termination of the Agreement. Two consultation meetings with the affected employees were held on 18 August and 22 August 2014. In addition, employees were offered the opportunity of private consultation with the employer, to determine the individual impact on them. The vast majority of employees took up the offer. The views of the employees were said to be concern for their ongoing employment rather than any loss of income. The final vote of employees was stated as being in favour of termination of the Agreement.

[6] Termination of the Agreement will result in the Clerks - Private Sector Award 2010 1applying to the employees. This means that the employees will have a reduction in their terms and conditions. In her statutory declaration, Ms Estell explained that the Agreement was made at a time when the resources sector in their area was booming. However, this was said to no longer be the case with the resultant economic downturn having a significant adverse impact on the company. Working hours had been reduced by agreement with the closure of parts of the business. The business was stated to have continued to be adversely affected by economic conditions due to margin squeezes and anti-competitive government policy programs.

[7] No submissions that the termination of the Agreement would be contrary to the public interest have been received by the Fair Work Commission. No employees have made submissions to the Commission opposing the termination of the Agreement.

[8] On the basis of the material before me, I am satisfied that the termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act). Further, in accordance with section 226(b) of the Act, I have considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

[9] Therefore, in accordance with section 226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] The termination will take effect from today's date, 10 October 2014.

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