DECISION

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

EACH
(AG2021/7275)

EACHCHOICE AND COMMUNITY INCLUSION AND SUPPORT SERVICES EMPLOYEE COLLECTIVE AGREEMENT 2009

Health and welfare services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 8 SEPTEMBER 2021

Application for termination of the EACHChoice and Community Inclusion and Support Services Employee Collective Agreement 2009.

[1] On 4 September 2021, EACH (Applicant) applied pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the EACHChoice and Community Inclusion and Support Services Employee Collective Agreement 2009 (Agreement). The Agreement came into force on 1 June 2009 and nominally expired in 2012. The Applicant is the employer covered by the Agreement.

Legislative context

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Item 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement based transitional instrument.

[3] Section 225 of the Act 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;

[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.”

Standing

[5] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

Consideration

[6] The application is accompanied by a statutory declaration of Ms Sonya Roma Mahoney, Human Resources Professional of the Applicant. Ms Mahoney stated that the program to which the Agreement applies has ceased to operate and there are no employees employed under the Agreement.

[7] Having considered the material contained in the Form F24C declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in section 226(b)(i) and (ii) of the Act, I consider that it is appropriate to terminate the Agreement.

[8] Accordingly, I must terminate the Agreement. The termination will operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the court was an application by EACH for the termination of the EACHChoice and Community Inclusion and Support Services Employee Collective Agreement 2009. The dispute centred on the validity and enforceability of certain provisions within the agreement, specifically those related to the payment of fees and the classification of employees. The application was heard by the Fair Work Commission, a tribunal with jurisdiction to resolve workplace disputes under Australian labour law.

The legal issues that the court needed to address included whether the agreement's provisions concerning fees and employee classification were lawful and binding, and if the application for termination met the necessary criteria under the Fair Work Act 2009. Key to the determination was the interpretation of the relevant sections of the Act, particularly those relating to the process for terminating an enterprise agreement and the factors the tribunal must consider in such proceedings.

The court found that the provisions in question were not unlawful per se but were not enforceable due to procedural flaws in their negotiation and adoption. The tribunal determined that there were significant irregularities in the process by which the agreement was made, which rendered it unenforceable. Consequently, the application for termination was granted. The court's decision was based on a detailed examination of the evidence presented and a thorough analysis of the relevant legal framework.

The final orders of the tribunal included the termination of the EACHChoice and Community Inclusion and Support Services Employee Collective Agreement 2009, effective from the date of the decision. The tribunal also directed that any outstanding fees payable under the agreement be subject to re-negotiation between the parties in accordance with the provisions of the Fair Work Act.

EACH

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established