EACH

[2021] FWCA 5586

[2021] FWCA 5586

FAIR WORK COMMISSION

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;

(c) an employee organisation 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

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