Inclusion Melbourne

[2014] FWCA 8026

[2014] FWCA 8026

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Inclusion Melbourne
(AG2014/9285)

GAWITH VILLA DISABILITY SERVICES VICTORIA (PART 1) ENTERPRISE AGREEMENT 2005

Educational services
COMMISSIONER BISSETT	MELBOURNE, 13 NOVEMBER 2014

Gawith Villa Disability Services Victoria (Part 1) Enterprise Agreement 2005.

[1] An application has been made pursuant to Item 15 Sch.3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the Gawith Villa Disability Services Victoria (Part 1) Enterprise Agreement 2005 (the Agreement). The nominal expiry date of the Agreement was 30 June 2006.

[2] I must approve the termination if I am satisfied that each of the requirements of Section 223 of the Fair Work Act 2009 (the Act) are met. Section 223 provides as follows:

223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

(a) FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application states that the termination of the Agreement was agreed to on 26 September 2014. Pursuant to Section 222(3)(a) the application was made within 14 days after the termination was agreed to.

[4] A statutory declaration of Ms Kathlean Lewer, Project Manager of Inclusion Melbourne Inc was provided with the application. Ms Lewer’s declaration states that each employee covered by the Agreement was sent an email on 31 August 2014 explaining the process for agreeing to terminate the Agreement, recommending they vote to approve termination and providing a table summarising the differences between the Agreement and the modern award.

[5] I accept the evidence in the statutory declaration of Ms Lewer that employees were advised of the time and place at which the vote would occur and the voting method to be used (Section 220(1) and 2(a) and 3 of the Act), and that the majority voted in favour of the termination (Section 221 of the Act).

[6] On 22 October 2014 the Australian Education Union (AEU) advised that they sought to make submissions on the application and the matter was listed for hearing.

[7] On 23 October 2014 my Associate wrote to the Applicant’s representative seeking a copy of the material sent to the employees in relation to the termination. This material was provided to my chambers on 29 October 2014.

[8] On 7 November 2014 the AEU advised that in light of the material provided, ‘we will not oppose the application to terminate the Gawith Villa Disability Services Victoria (Part 1) Enterprise Agreement’. They went on to say that ‘The decision not to oppose the application does not constitute endorsement of or agreement with argumentation put to staff and the union in relation to the conditions contained in the agreement’.

[9] As the AEU did not oppose the application, I have determined this matter on the material before me and I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met.

[10] I approve the termination of the Agreement. Pursuant to s.224 of the Act the termination of the Agreement will operate from 13 November 2014.

COMMISSIONER

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