FKA Children’s Services Inc.

[2016] FWCA 3875

[2016] FWCA 3875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

FKA Children’s Services Inc.
(AG2016/1085)

FKA CHILDREN’S SERVICES INC ENTERPRISE AGREEMENT 2003

Health and welfare services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 15 JUNE 2016

Application for termination of the FKA Children’s Services Inc Enterprise Agreement after its nominal expiry date.

[1] On 4 May 2016, FKA Children’s Services Inc. (FKA) made an application to the Fair Work Commission (the Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) for the termination of the FKA Children’s Services Inc Enterprise Agreement 2003 (the Agreement).

[2] The Agreement came into operation from 20 January 2003 with a nominal expiry date of 20 January 2006.

[3] FKA filed a statutory declaration of Denise Rundle, President of FKA, in support of the Application which was declared on 28 April 2016 (Statutory Declaration).

[4] On 16 May 2016, I issued directions which noted that the Application would have been better made under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) and that I would be prepared to make a variation to the application rather than require the Company to complete a new application.

[5] The Company advised on 26 May 2016 that it wished to proceed with the Application and the variation as proposed.

[6] I have utilised the discretion of section 586 of the Act and amended the Application accordingly.

Legislative provisions

[7] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the 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.

[8] Chapter 2, Part 2-4, Division 7, Subdivision D of the Act is 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 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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[9] 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 s.225(a) of the Act.

[10] Based on the material contained in the statutory declaration filed with the Application and the subsequent materials filed in accordance with the directions issued on 16 and 20 May 2016 and in accordance with s.226(a), there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[11] No opposition to the Application was received for or on behalf of any employees.

[12] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226(b)(i) and (ii) of the Act, the Agreement is terminated.

[13] The termination will come into effect from 15 June 2016.

COMMISSIONER

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