Independent Education Union (South Australia) Branch

[2021] FWCA 359

[2021] FWCA 359

FAIR WORK COMMISSION

DECISION

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

Independent Education Union (South Australia) Branch
(AG2021/44)

INDEPENDENT EDUCATION UNION (SOUTH AUSTRALIA) ENTERPRISE AGREEMENT 2012

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 2 FEBRUARY 2021

Application for termination of the Independent Education Union (South Australia) Enterprise Agreement 2012.

[1] This decision concerns an application by the Independent Education Union (South Australia) Branch (IEU (SA) Branch Inc or the Applicant) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Independent Education Union (South Australia) Enterprise Agreement 2012 (the 2012 Agreement). The Agreement was approved by the Commission on 14 January 2013. 1 The Agreement commenced operation on 21 January 2013 and has a nominal expiry date of 31 July 2015. The Australian Municipal, Administrative, Clerical and Services Union (ASU), is also covered by the Agreement.

[2] A hearing by telephone was conducted in this matter on 2 February 2021. At the conclusion of that hearing I expressed my intention to terminate the 2012 Agreement and indicated that I would subsequently provide a written decision.

[3] The FW Act relevantly provides:

“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.”

[4] The application was accompanied by a statutory declaration of Mr Glen Seidel, Secretary of the IEU (SA) Inc, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included contentions to the effect of the following:

•  The employment of all relevant staff employed by the 2012 Agreement was transferred by the IEU (SA) Inc to the SA Branch of the Independent Education Union of Australia (IEUA);

•  The IEU (SA) Branch Inc from that point in time has had no employees and there is no intention for IEU (SA) Inc to employ any staff again;

•  The 2012 Agreement therefore has no work to do as there are no employees to be covered by it;

•  The IEU (SA) Branch has an approved enterprise agreement to cover the staff – Independent Education Union (South Australia) Branch Enterprise Agreement 2017 (2017 Branch Agreement) (AG 2017/5096);

•  The 2017 Branch Agreement does not automatically supersede the 2012 agreement as the two agreements relate to different employers and the 2012 agreement continues in effect until rescinded or replaced;

•  It is in the public interest to avoid the confusion between two enterprise agreements with similar names;

•  Out of courtesy the branch employees and the ASU were notified on the intention to make this application in 2018, with no objections or comment.

[5] Given the status of the 2012 Agreement, the IEU (SA) is entitled to apply for its termination pursuant to s.225 of the FW Act.

[6] In the lead up to the hearing of this matter, directions were issued requiring the IEU (SA) to ensure that any affected employees were aware of this hearing and provide details for any affected employee to make a contribution about the application to terminate the agreement.

[7] The ASU, being a party covered by the 2012 Agreement, was notified of the hearing by way of a Notice of Listing. Mr Scott Cowan, Assistant Secretary subsequently notified my Chambers by email that the Union did not oppose the application. Given this fact and the import of the statutory declaration of Mr Seidel and the absence of any contrary views expressed, I am satisfied that all affected parties support, or at least do not oppose, the application.

[8] Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the 2012 Agreement and that it is appropriate in all of the circumstances, including having regard to the views of the employer, employees and the ASU to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the 2012 Agreement.

[9] The 2012 Agreement is terminated, and the termination will take effect on and from 11:59 pm on 2 February 2021.

COMMISSIONER

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 1   [2013] FWCA 245