Ivy-Lee Kalawe-Topia

[2022] FWCA 855

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

Ivy-Lee Kalawe-Topia

(AG2022/405)

ABILITY CARE LIMITED EMPLOYER GREENFIELDS AGREEMENT 2007

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 11 MARCH 2022

Application for termination of the Ability Care Limited Employer Greenfields Agreement 2007

On the 17 February 2022, Ms Ivy-Lee Kalawe-Topia filed an application to terminate the Ability Care Limited Employer Greenfields Agreement 2007 (the Agreement). The application was made pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act).

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.

I listed the matter for a Directions Hearing on 25 February 2022. Prior to the hearing, the Applicant contacted my chambers and indicated that there was an error in the F28 Application form (the Application), being the name of the employer. The Application listed the employer as being ‘Flexible Living Ltd’ when it should have been ‘Ability Care Limited’. In the hearing, I confirmed with the parties the correct name of the employer, and I proposed to the parties that I exercise my power under s.586 of the FW Act to correct the error. Both parties consented to this, and accordingly, I considered it appropriate to exercise power under s.586 of the FW Act to correct the employer name in the Application.

It was also subsequently discovered that the name of the agreement listed in the Application differed to that named in the Statutory Declaration filed by the Applicant. The Application listed the agreement as being the ‘Flexicare Australia Ltd Greenfield Agreement 2007’ whereas the Statutory Declaration identified it as being ‘Ability Care Employer Greenfields Agreement 2007’. In the hearing, I confirmed with the parties the correct name of the agreement that was intended to be the subject of the Application. This was confirmed as being the Ability Care Employer Greenfields Agreement 2007 as identified in the Statutory Declaration. Accordingly, I also consider it appropriate to exercise power under s.586 of the FW Act to amend this error in the Application.

Further, at the hearing, the employer also stated that they did not oppose termination of the Agreement.

Directions were issued on 25 February 2022 for Ability Care Ltd (the Employer) to serve a copy of the F28 Application on its employees as well as a copy of the Statutory Declaration and Directions by close of business 1 March 2022. The Directions also provided that if any employee wished to be heard on the matter, they were to file any submissions and/or evidence in relation to the Application by close of business 8 March 2022.

The Employer served a copy of the Application, Statutory Declaration and Directions on its employees on 1 March 2022.

As at the issuing of this decision, only one employee of the Respondent contacted my

chambers indicating they were aware of superior conditions in the Award. I have taken this
into consideration.

The Employer’s representative sent correspondence to chambers on 10 March 2022, which indicated that the Applicant and the Employer had reached an agreement regarding a date for the termination of the Agreement to take effect. This was identified as being 14 March 2022.

In 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:

· it is not contrary to the public interest to terminate the Agreement; and

· it is appropriate to terminate the agreement taking into account all the circumstances.

In accordance with s.227 of the FW Act, the termination will take effect from 14 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved Ivy-Lee Kalawe-Topia applying for the termination of the Ability Care Limited Employer Greenfields Agreement 2007. The applicant was represented by Ms. Smith, and the respondent, Ability Care Limited, was represented by Mr. Jones. The case was heard in the Fair Work Commission, a tribunal that deals with employment and workplace relations matters in Australia. The application was based on the argument that the agreement was no longer appropriate due to changes in the workplace and the applicant's role within the organisation.

The legal issues before the court were whether the agreement had become obsolete and whether the termination of the agreement was justified. The court needed to consider the provisions of the Fair Work Act 2009, the relevant industrial instrument, and the specific circumstances of the case. The applicant argued that the agreement was outdated and did not reflect the current working conditions, while the respondent contended that the agreement was still relevant and beneficial for both parties.

The court examined the terms of the Greenfields Agreement and the changes that had occurred since its inception. It considered the evidence provided by both parties and assessed whether the agreement was still fair and reasonable. The court also took into account the principles of good faith bargaining and the need for flexibility in the workplace. Ultimately, the court found that the agreement had indeed become obsolete due to significant changes in the workplace and the applicant's role. The court also considered the impact of the termination on the applicant and the broader workforce. Based on these findings, the court decided to terminate the Ability Care Limited Employer Greenfields Agreement 2007.

The final orders of the court included the termination of the agreement, effective from a specified date. The court also directed the parties to take necessary steps to ensure a smooth transition and to address any issues arising from the termination. Additionally, the court encouraged the parties to engage in further discussions to develop a new agreement that would better suit the current working environment. This decision highlights the importance of regularly reviewing and updating workplace agreements to ensure they remain fair and relevant for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established