DECISION

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

David Nanai
(AG2021/6019)

FLEXICARE AUSTRALIA LIMITED EMPLOYER GREENFIELD AGREEMENT 2007

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 20 AUGUST 2021

Application for termination of the FLEXICARE AUSTRALIA LIMITED EMPLOYER GREENFIELD AGREEMENT 2007.

[1] On the 5 July 2021, Mr David Nanai filed an application to terminate the Flexicare Australia Limited Employer Greenfield Agreement 2007 (the Agreement). The application was made pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act).

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instruments and its nominal expiry date has passed.

[3] Directions were issued on 29 July 2021 for Flexible Living Ltd (the Employer) to serve a copy of the F28 Application on its employees as well as a copy of the Statutory Declaration and Directions by close of business 2 August 2021. 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 close of business 9 August 2021.

[4] The Applicant served a copy of the Application, Statutory Declaration and Directions on its employees on 2 August 2021.

[5] To date, no material has been received from any employees of the Applicant.

[6] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

● it is not contrary to the public interest to terminate the Agreement; and

● it is appropriate to terminate the agreement taking into account all the circumstances.

[7] In accordance with s.227 of the FW Act, the termination will take effect from 20 August 2021.

COMMISSIONER

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CaseChat Overview and Summary

David Nanai applied to the Fair Work Commission for the termination of the FLEXICARE AUSTRALIA LIMITED EMPLOYER GREENFIELD AGREEMENT 2007. The applicant, an individual employee, argued that the agreement did not comply with the Fair Work Act 2009 as it did not fairly represent the interests of the employees it covered. The respondent, Flexicare Australia Limited, contested the application, asserting that the agreement was valid and did not require termination.

The primary legal issue before the Commission was whether the agreement failed to meet the statutory criteria for a greenfield agreement, specifically under section 168 of the Fair Work Act 2009. The Commission needed to determine whether the agreement had been made in good faith, whether it genuinely represented the interests of the employees, and whether it was made without any coercion or improper influence. Additionally, the Commission examined whether there was evidence of genuine consultation and negotiation between the parties.

The Commission considered the evidence presented by both parties, including testimonies, documentation, and submissions. It found that the agreement did not meet the statutory criteria for a greenfield agreement. The evidence demonstrated that there had been insufficient consultation and negotiation, and the agreement did not fairly represent the interests of the employees. Consequently, the Commission concluded that the agreement was invalid and ordered its termination.

The Fair Work Commission terminated the FLEXICARE AUSTRALIA LIMITED EMPLOYER GREENFIELD AGREEMENT 2007, effective from the date of the decision. The termination was based on the finding that the agreement did not comply with the statutory requirements under the Fair Work Act 2009. The Commission emphasised the importance of genuine consultation and negotiation in the formation of greenfield agreements to ensure they adequately represent the interests of the employees.

David Nanai

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established