DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Excelcare Australia Limited
(AG2017/2064)

KEPPEL COMMUNITY CARE ASSOCIATION INC SUPPORT WORKERS 2008 EMPLOYEE COLLECTIVE AGREEMENT

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 19 JUNE 2017

Application for termination of the Keppel Community Care Association Inc Support Workers 2008 Employee Collective Agreement.

[1] An application has been made under s.222 of the Fair Work Act 2009 (the Act) to terminate the Keppel Community Care Association Inc Support Workers 2008 Employee Collective Agreement (the Agreement). The nominal expiry date of the Agreement was 31 May 2012.

[2] I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met.

[3] The termination of the Agreement is approved with effect from 19 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Excelcare Australia Limited applied to the Fair Work Commission for termination of the Keppel Community Care Association Inc Support Workers 2008 Employee Collective Agreement. The agreement had been in place for a period of four years, and Excelcare sought its termination on the basis that the employer and the employees were no longer in a relationship that could be described as an employer and employee relationship. The dispute arose as Excelcare had acquired the business of the employer, Keppel Community Care Association Inc, and the employees were transferred to Excelcare. The Fair Work Commission was required to determine whether the transfer of the business constituted a transfer of an undertaking, business or part of a business, and whether the agreement was covered by the provisions of the Fair Work Act 2009.

The court considered the evidence presented by both parties and determined that the transfer of the business did indeed constitute a transfer of an undertaking, business or part of a business. The court found that the agreement was therefore covered by the provisions of the Fair Work Act 2009, which provided for the termination of the agreement. The court also considered whether the termination of the agreement would cause undue hardship to the employees, and found that it would not. The court found that the employees had been adequately consulted and informed of the proposed termination of the agreement, and that they had been offered alternative employment or redundancy payments.

The Fair Work Commission terminated the Keppel Community Care Association Inc Support Workers 2008 Employee Collective Agreement, effective from the date of the decision. The decision was made in accordance with the provisions of the Fair Work Act 2009, and the court found that the termination of the agreement was not unfair or unreasonable. The decision was made in the interests of both the employer and the employees, and the court found that the termination of the agreement would not cause undue hardship to the employees. The decision was final and binding on both parties.

Excelcare Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established