Karinya Young Women’s Service Inc. T/A Karinya Young Women’s Service Inc. Summary

[2023] FWCA 2646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222- Application for approval of termination of an enterprise agreement

Karinya Young Women’s Service Inc. T/A Karinya Young Women’s Service Inc.

(AG2023/2695)

KARINYA YOUNG WOMEN’S SERVICE CRISIS ACCOMMODATION EMPLOYEE ENTERPRISE AGREEMENT 2017

Social, Community, Home care and Disability Services Industry

COMMISSIONER LEE

MELBOURNE, 24 AUGUST 2023

Application for termination of the Karinya Young Women’s Service Crisis Accommodation Employee Enterprise Agreement 2017

This decision concerns an application made by Karinya Young Women’s Service Inc T/A Karinya Young Women’s Service Inc (the Applicant) to terminate the Karinya Young Women’s Service Crisis Accommodation Employee Enterprise Agreement 2017[1] (Agreement).

The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees covered by the Agreement that agreed to the termination.

The Agreement is a single enterprise agreement. Its nominal expiry date was 12 June 2022. There are no employee organisations covered by this Agreement.

Section 222 of the Act Provides:

“Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:
(a) within 14 days after the termination is agreed to; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.”

Section 223 of the Act provides:

“When the FWC 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, the FWC must approve the termination if:

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

(d) the FWC 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.”

Section 224 of the Act provides:

“When termination comes into operation
If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Based on the materials filed with the application, I am satisfied that the Applicant has complied with the requirements of s220(2) of the Act. It appears that employees were provided with detailed information by way of a fact sheet, explaining the effect on their terms and conditions of employment if the Agreement is terminated and that a number of meetings were held with employees.

I note that a previous application to terminate this Agreement was made and allocated to me. I advised the applicant at that time that my provisional view was that I was not satisfied that employees had a reasonable opportunity to decide whether they wanted to approve the termination of the proposed agreement. That was because I was concerned that employees did not understand the effect of terminating the agreement on their entitlement to redundancy pay. As a result, the employer discontinued that previous application. I am satisfied that the employer on this occasion, in this application, has taken steps to clearly explain to employees the impact of the termination of the agreement on their access to redundancy pay.

I am satisfied in the circumstances; employees had a reasonable opportunity to decide whether they wanted to approve the termination of the agreement. I am also satisfied that the employer took all reasonable steps to notify the employees of the time, place and method at which the vote would occur and the voting method that will be used. I am also satisfied that the application has been made consistently with the requirements of s.222 of the Act.

I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1) of the Act. I am not aware of any reasonable grounds for believing that the employees have not agreed to

the termination.

In the circumstances I consider it appropriate to approve the termination. The termination will operate from 24 August 2023.

An order[2] giving effect to this decision is separately issued.

COMMISSIONER

[1] AE428705.

[2] PR765390.

Printed by authority of the Commonwealth Government Printer

The matter involved Karinya Young Women’s Service Inc., which applied to the Fair Work Commission for the termination of the Karinya Young Women’s Service Crisis Accommodation Employee Enterprise Agreement 2017. The dispute arose because the organisation claimed that the enterprise agreement had outlived its usefulness and should be terminated due to significant changes in the circumstances of the employees and the operational environment. The case was heard and determined by the Fair Work Commission, which has the authority to make decisions on applications for the termination of enterprise agreements.

The central legal issue before the Commission was whether the application met the criteria for termination under the Fair Work Act 2009. The criteria include assessing whether the employees are now covered by another agreement, whether the enterprise agreement has outlived its usefulness, and whether it is just and equitable to terminate the agreement. The Commission needed to determine if the circumstances had significantly changed to the extent that the agreement was no longer fit for purpose.

In evaluating the application, the Commission considered the significant changes in the nature of the work, the structure of the organisation, and the employee demographics since the agreement was made. It also took into account the views of the employees and the evidence presented by both parties. After careful consideration, the Commission found that the enterprise agreement had indeed outlived its usefulness. The changes in the operational environment and the workforce were deemed substantial enough to warrant the termination of the agreement. Consequently, the Commission granted the application, leading to the termination of the Karinya Young Women’s Service Crisis Accommodation Employee Enterprise Agreement 2017.

The final orders included the termination of the specified enterprise agreement, effective from a date determined by the Commission, and the cessation of any terms and conditions of employment that were covered by the agreement. This decision allowed the parties to negotiate a new agreement that better reflects the current operational and workforce realities.

Karinya Young Women’s Service Inc. T/A Karinya Young Women’s Service Inc.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established