IPC Employment Pty Ltd

[2014] FWCA 408

[2014] FWCA 408

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

IPC Employment Pty Ltd
(AG2013/11867)

IPC EMPLOYMENT CERTIFIED AGREEMENT 2004-2006

Clerical industry
COMMISSIONER ROE	MELBOURNE, 16 JANUARY 2014

Application for termination of the IPC Employment Certified Agreement 2004-2006.

[1] An application has been made pursuant to Item 16 Sch. 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the IPC Employment Certified Agreement 2004-2006 (the Agreement). The nominal expiry date of the Agreement was 30 June 2006.

[2] The Application has been made by the employer covered by the Agreement, IPC Employment Pty Ltd (IPC or the employer) and I am therefore satisfied that the Application has been made in accordance with Section 225. I must approve the termination if I am satisfied that each of the requirements of Section 226 of the Fair Work Act 2009 (the Act) are met. Section 226 provides as follows:

“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.”

[3] The Statutory Declaration of Patrick Moody, HR Business Partner with Employment Services Holdings Group Pty Ltd (ESH), the parent company of IPC Employment Pty Ltd, satisfies me that:

● IPC Employment Pty Ltd was purchased by ESH in 2007 and IPC now trades as PVS Workfind. PVS Workfind is covered by the Labour Market Assistance Industry Award 2010 (the Award). The other ESH companies including those which operate under the banner PVS Workfind in the labour market assistance industry are employed under the Award and not under collective agreements. The employees may have common law employment contracts which supplement the conditions specified in the Award.

● New employees have been engaged under the Award and not under the Agreement.

● There are five remaining employees covered by the Agreement.

● The actual rates paid to those employees still covered by the Agreement are well in excess of those specified in the Award and those specified in the Agreement. The rates of pay are $10,000 per annum in excess of the rates in the Agreement.

[4] I have examined the Agreement and am satisfied that overall the rates and conditions specified in the Award and the NES exceed those which are specified in the Agreement. There are a number of conditions in the Agreement which are inferior to the NES. The wages specified in the Agreement are generally inferior to those specified in the Award. There are some conditions in the Agreement which may disadvantage some employees when compared to the Award. The casual loading is less than that specified in the Award and there are a number of other Award conditions and allowances which are not contained in the Agreement. There are two matters where the Agreement may be beneficial to employees when compared to the Award. Firstly, the Agreement provides for up to two non-accumulative “chill out days” in a year. Secondly, the Agreement provides for three days bereavement leave, however, the access conditions are less comprehensive than the NES.

[5] Overall I am satisfied that the employees would be better off overall if they were employed under the Award rather than under the Agreement.

[6] At my request the employer wrote to each affected employee in the following terms:

“Termination of IPC Employment Certified Agreement 2004-2006

I am writing to you to make you aware that PVS Workfind has submitted an application to the Fair Work Commission under s226 of the Fair Work Act 2009 to terminate the IPC Employment Certified Agreement 2004-2006. As an employee who has been employed by IPC Employment prior to January 1 2010, you are covered by this Agreement.

If the termination of this agreement proceeds, you will of course remain employed as a valued member of the PVS Workfind team in line with your current contract of employment.

PVS Workfind has made this application as we are of the view that the provisions of this Agreement are no longer relevant to PVS Workfind, and the pay and entitlements in the Agreement have largely been superseded by subsequent pay increases you have received and the introduction of the National Employment Standards as part of the Fair Work Act 2009. PVS Workfind is seeking to ensure we have consistent provisions for pay and conditions through contracts underpinned by the relevant Awards across the entire business.

Termination of this agreement will have the following effects:

• Removal of the entitlement to 2 ‘Chill Out Days’ per year.



• A reduction in the entitlement to compassionate leave in the event of death of a family member from 3 days to 2 days (please note that the National Employment Standards have expanded the circumstances where you are able to take compassionate leave).




You will continue to receive a rate of pay above both the Labour Market Assistance Industry Award 2010 and the IPC Employment Certified Agreement as per your contract of employment, as well as all the conditions of employment as set out in that contract. Please note that, unlike rates of pay set out in the Certified Agreement (and Modern Award), your current rate of pay is not enforceable through the Fair Work Act, instead it is a matter of enforcing your contract of employment.

To assist you, I have attached a copy of the Certified Agreement to this email. You may also wish to refer to your current Contract of Employment, as well as the National Employment Standards contained in Part 2-2 of the Fair Work Act 2009.

The Fair Work Commission is interested in your views on the proposal of PVS Workfind to terminate this Agreement. You can provide your views to [email protected] by no later than 13 January 2013. Please put in the heading of the email ‘AG2013/11867 IPC Employment Certified Agreement 2004-2006’.

If you have any questions about this matter, please do not hesitate to contact me.”

[7] No response was received from any affected employee. The employees were provided with advice about the hearing of this matter and no employee attended the hearing.

[8] The Act encourages employment under collective agreements and this is a factor which will often mean that it is contrary to the public interest to terminate a collective agreement when another collective agreement is not in prospect. However, because I am satisfied that employees will be better off overall under the Award than under the Agreement in the circumstances of this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[9] I am not aware of the involvement of any union and the affected employees have been informed about the application and have had a genuine opportunity to express any views they may have. No opposition to the employer’s Application has been expressed.

[10] Having considered the views of the employer and the affected employees, the effect of the proposed termination on the employer and employees, and the overall circumstances, I consider that it is appropriate to terminate the Agreement.

[11] Having considered all of the matters in Section 226 I have decided to approve the termination of the Agreement.

[12] Pursuant to Section 227 of the Act the termination of the Agreement will operate from 16 January 2014.

COMMISSIONER

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