Eworks Employment Solutions Incorporated T/A Eworks Employment Solutions

[2013] FWCA 5059

[2013] FWCA 5059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Eworks Employment Solutions Incorporated T/A Eworks Employment Solutions
(AG2013/6767)

EMPLOYMENT WORKS ENTERPRISE AGREEMENT 2010 - 2012

Social, community, home care and disability services
COMMISSIONER JOHNS	MELBOURNE, 29 JULY 2013

Termination of the Employment Works Enterprise Agreement 2010-2012.

[1] On 31 May 2013, Eworks Employment Solutions Incorporated T/A Eworks Employment Solutions (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Employment Works Enterprise Agreement 2010-2012 (the Agreement).

[2] Schedule 3 Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that “Subdivision D of Division 7 of Part 2-4 of the Fair Work Act...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.”

[3] The Agreement is a collective agreement-based transitional instrument and its nominal expiry date was 1 March 2012.

[4] The relevant provisions of the Act are as follows:

“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 FWA 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 FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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 s.226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] This matter was listed for an eHearing on 29 July 2013.

[6] On 22 July 2013, an email was sent to the Applicant requesting further information regarding the factors contained within section 226 of the Act. In response, the Applicant outlined the process undertaken to ensure employees were provided with sufficient information, and attached documentation that was produced in the course of preparing for the termination of the agreement and the employee vote.

[7] In light of the additional documentation, the Commission sought the views of the Community and Public Sector Union (the Union) regarding the application. An email was received from the Union on 24 July 2013 advising that they were concerned that ‘additional benefits’ identified by the Applicant had to be guaranteed.

[8] On 25 July 2013, the Commission emailed the Applicant requesting further information as to the enforceability of the additional benefits. The Applicant responded that each employee had received a letter on the Applicant’s letterhead advising of the change from the Agreement to the relevant award, and a ‘Change of Employee Details’ form which provided for the additional benefits and which amended the employees’ contracts. Consequently, the Commission is satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances of the employees and employer.

[9] The Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 29 July 2013.

COMMISSIONER

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