Giant Steps Tasmania

[2013] FWCA 944

[2013] FWCA 944

FAIR WORK COMMISSION

DECISION

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

Giant Steps Tasmania
(AG2012/13798)

DEPUTY PRESIDENT SMITH MELBOURNE, 13 MARCH 2013

Application by Giant Steps Tasmania to terminate the Giant Steps Tasmania Ltd (Employment Conditions) Industrial Agreement 2000.

[1] On 29 November 2012 Giant Steps Tasmania Ltd (“the Employer”) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”) to terminate the Giant Steps Tasmania Ltd (Employment Conditions) Industrial Agreement 2000 (“the Agreement”).

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] Insufficient information regarding the views of employees was provided in the initial application so on 4 December 2012 a request for further information was sent to the Employer and to the Health and Community Services Union (“The Union”), which was also covered by the agreement.

[4] The Union responded stating:

“We do not intend to bargain with the Applicant employer in the future and do not have a membership that is asking us to make submissions/representation/’views’ in this matter pursuant to s.226. That said, the Agreement appears to include terms that may be beneficial for current employees and we believe, as is required under s.226, the views of employees should be considered before terminating it—unfortunately we cannot assist in gaining or relating those views to FWA.”

[5] The Employer subsequently forwarded a statutory declaration to the Commission, attesting to the fact that the Employer had provided relevant information to the employees and stated that:

“Staff were also briefed on the proposed retirement of the Agreement and asked for feedback. The general view was that provided staff were no worse off, they were happy for the organisation to retire the Agreement.”

[6] Having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

• the termination of the Agreement will not cause any detriment to the employees covered by the Agreement;



• the employees have agreed to the termination of the Agreement so long as they are no worse off;



• the consequences of terminating the Agreement will mean the employees will be covered by the Educational Services (Schools) General Staff Award 2010, which provides more favourable terms and conditions than the Agreement; and



• termination of the Agreement is not contrary to the public interest.

[7] In accordance with s.227 of the FW Act, the termination will come into effect on 13 March 2013.

DEPUTY PRESIDENT

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