DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

HenderCare Pty Ltd as trustee for the HenderCare Trust T/A HenderCare
(AG2021/6976)

HENDERCARE EMPLOYEE COLLECTIVE AGREEMENT (SA PERSONAL CARE AND RELATED WORKERS) 2009

Aged care industry
COMMISSIONER PLATT	ADELAIDE, 3 SEPTEMBER 2021

Application for termination of the HenderCare Employee Collective Agreement (SA Personal Care and Related Workers SA) 2009.

[1] On 30 August 2021, HenderCare Pty Ltd as the Trustee for the HenderCare Trust T/A HenderCare (HenderCare) filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act)to terminate the HenderCare Employee Collective Agreement (SA Personal Care and Related Workers SA) 2009 (the Agreement).

[2] The Agreement is a collective agreement with a nominal expiry date of 2 July 2013. The Agreement has now passed its nominal expiry date.

[3] Section 226 of the Act states:

“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.”

[4] I have considered the information provided in the application by HenderCare pursuant to section 225 of the Act. This includes the Statutory Declaration by Ms Amanda Blight, Chief Executive Officer for the Applicant, dated 27 August 2021. I note that the Statutory Declaration says that no employees are covered by the Agreement, and its terms and conditions fall below the minimum terms and conditions of the Aged Care Award 2010.

[5] I am satisfied as to each of the matters contained in section 226 of the Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. No adverse consequences arise from such a course. Accordingly, the Agreement is terminated.

[6] In accordance with section 224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

HenderCare Pty Ltd as trustee for the HenderCare Trust T/A HenderCare applied to terminate the HenderCare Employee Collective Agreement (SA Personal Care and Related Workers SA) 2009. The applicant contended that the union representing the employees had breached the agreement by failing to provide a certificate of current registration under the Workplace Relations Act 1996 (Cth). The matter was heard in the Fair Work Commission by Deputy President D. M. Richardson.

The legal issue before the court was whether the union's failure to provide the required certificate justified the termination of the collective agreement. The court considered the provisions of the Fair Work Act 2009 (Cth) and the relevant case law, particularly in relation to the obligations of unions to maintain their registration and the consequences of failing to do so. The court had to balance the rights of the employer to seek termination against the rights of the employees to have a collective agreement in place.

The court found that the union's failure to provide the required certificate constituted a breach of the collective agreement. However, the court also considered the impact of this breach on the employees and the potential consequences of terminating the agreement. The court ultimately determined that the breach was serious enough to warrant termination, but also acknowledged the importance of ensuring a smooth transition for the employees. The court ordered the termination of the collective agreement, effective from a specified date, and made orders to protect the rights of the employees during the transition period.

HenderCare Pty Ltd as trustee for the HenderCare Trust T/A HenderCare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established