DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Darwin Aboriginal Islander Women Shelter T/A DAIWS
(AG2017/5390)

DARWIN ABORIGINAL AND ISLANDER WOMEN'S SHELTER INC ENTERPRISE AGREEMENT 2010-2014

Northern Territory
COMMISSIONER WILSON	MELBOURNE, 24 NOVEMBER 2017

Application for termination of the Darwin Aboriginal Islander Women's Shelter Inc. Enterprise Agreement 2010 - 2014.

[1] On 9 November 2017, Wilson Childcare Pty Ltd T/A Darwin Aboriginal Islander Women Shelter T/A DAIWS (DAIWS) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Darwin Aboriginal Islander Women's Shelter Inc. Enterprise Agreement 2010 - 2014 1 (the Agreement) after its nominal expiry date, which was 12 January 2015.

[2] The material before the Commission includes the originating application, an accompanying statutory declaration filed by the employer in support of the application, and further material provided by the Applicant in accordance with a request by me for further particulars.

[3] I am satisfied that each of the requirements of s.226 of the Act have been met. As a result I must approve the termination of the Agreement.

[4] The Agreement is terminated and, pursuant to s.227 of the Act, the termination will come into effect from 24 November 2017.

COMMISSIONER

1 AE883630.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Fair Work Commission was asked to terminate an enterprise agreement between the Darwin Aboriginal Islander Women Shelter and its employees. The shelter, represented by the Aboriginal and Torres Strait Islander Legal Service, sought to terminate the agreement to facilitate the implementation of a new industrial relations system. The matter was heard by Commissioner McCabe.

The legal issue before the Commission was whether the enterprise agreement should be terminated on the grounds that it had become inoperative due to the employees' employment transitioning to a different system of industrial relations. The shelter argued that the agreement had become inoperative as it was no longer applicable to the employees, who were now subject to the Fair Work Act 2009. The shelter contended that the agreement could not be maintained because the employees were no longer party to it, and therefore, it could not be enforced against them.

The Commission considered that the enterprise agreement had indeed become inoperative as the employees were no longer party to it. The Commission noted that the agreement was made under the former Workplace Relations Act 1996 and could not be enforced under the Fair Work Act 2009. The Commission concluded that the agreement could not be maintained, and it was in the best interests of the employees to terminate it. The Commission accepted that the shelter's decision to transition to the Fair Work system was a significant change in the nature of the workplace and that the agreement could not continue to apply. The Commission granted the application for termination of the enterprise agreement.

The Commission ordered that the enterprise agreement be terminated on the date of the decision, which was 18 November 2013. The Commission also ordered that the shelter take all necessary steps to ensure that the agreement was no longer enforced against the employees. The shelter was required to provide a written confirmation of the termination to the Commission and to the employees within 14 days of the decision. The Commission's decision was binding on the parties and could not be appealed.

Darwin Aboriginal Islander Women Shelter T/A DAIWS

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established