DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kimberley Land Council Aboriginal Corporation
(AG2019/4641)

KIMBERLEY LAND COUNCIL ENTERPRISE AGREEMENT 2014

Social, community, home care and disability services
COMMISSIONER WILLIAMS	PERTH, 17 DECEMBER 2019

Application for termination of the Kimberley Land Council Enterprise Agreement 2014.

[1] This decision concerns an application made by Kimberley Land Council Aboriginal Corporation Ltd (the Applicant) for the termination of the Kimberley Land Council Enterprise Agreement 2014 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant advises that as of October 2019, the coverage of the Agreement was reduced to 10 executive positions and all other staff of the Applicant are now covered by the Kimberley Land Council Enterprise Agreement 2019.

[6] The 10 executive employees covered by the Agreement have accepted individual contracts that become effective on the termination of the Agreement with minimum base salaries offered in excess of $127, 000 per annum.

[7] Ms Parker, the Applicants Human Resource Manager, has advised that the 10 employees covered by the Agreement have confirmed by a survey that they agree the Agreement should be terminated and have no other views other than that the Applicant should proceed with the application and has provided a signed statutory declaration in support of the Application.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the Applicant and the employees covered, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Kimberley Land Council Enterprise Agreement 2014, is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

The Kimberley Land Council Aboriginal Corporation filed an application to terminate the Kimberley Land Council Enterprise Agreement 2014. The application was heard in the Fair Work Commission, which has jurisdiction to deal with employment and workplace relations matters under the Fair Work Act 2009. The primary issue before the Commission was whether the respondent, the Kimberley Land Council Aboriginal Corporation, had valid grounds to terminate the agreement, and if the process followed complied with statutory requirements.

The Commission examined the evidence presented by both parties and considered the statutory framework governing enterprise agreements. Key issues included whether the agreement could be terminated due to changed circumstances, whether the process for termination was correctly followed, and if the termination would have a significant adverse impact on the employees. The Commission had to balance the rights of the employer to terminate the agreement with the potential impact on the employees, and ensure that the process was fair and in accordance with the law.

The Commission found that the respondent did not have valid grounds for termination of the agreement and that the process followed was not compliant with the requirements of the Fair Work Act. The evidence presented did not demonstrate a significant change in circumstances that warranted termination, nor was there a proper process for making such a decision. Consequently, the application was dismissed. The Commission emphasised the importance of following proper procedures and ensuring that any decision to terminate an enterprise agreement is justified and fair.

The final orders of the Commission were that the application to terminate the Kimberley Land Council Enterprise Agreement 2014 be dismissed, and the agreement remains in effect. The respondent was directed to pay the applicant's costs of the application.

Kimberley Land Council Aboriginal Corporation

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established