Launceston Police and Community Youth Club Inc T/A Launceston PCYC

[2021] FWCA 324

[2021] FWCA 324

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Launceston Police and Community Youth Club Inc T/A Launceston PCYC
(AG2021/29)

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 28 JANUARY 2021

Application for termination of the Launceston PCYC Employee Collective Agreement 2009.

[1] This decision concerns an application made by Launceston Police and Community Youth Club Inc T/A Launceston PCYC (the Applicant) for the termination of the Launceston PCYC Employee Collective Agreement 2009 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date. The employer covered by the Agreement has made and is entitled to make application to the Fair Work Commission to terminate the agreement. The old publication code for the Agreement was CAEN095751798. The Agreement was varied, and a subsequent publication code was generated (CAEV095751798-1).

[3] Item 16 of Schedule 3 to the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Section 225 of the Act 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.”

[5] Section 226 of the Fair Work Act 2009 (the Act) sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act:

“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.”

[6] I note that the Applicant lodged a Form F24B, which is an application made for the termination of an enterprise agreement after the nominal expiry date. I indicated that it appears that the Agreement is a collective agreement-based transitional instrument, and that I was amenable to accepting an amended application in light of fact that the Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. The Applicant subsequently amended its application.

[7] In its application, the Applicant indicated that:

“The Fitness Award provisions equal or exceed the Agreement. The pay scales as released each year are greater than those provided in this Agreement. As the Agreement is seven years out of date the NES and relevant Act have changed to exceed that provided in this Agreement. As the organisation is a registered not for profit charity, it is more efficient for Management and employees alike to keep abreast of Award changes rather than having an additional document that provides no additional benefits and which necessitates continual assessment to ensure standards and provisions do not drop below the NES. The Agreement now provides no benefit to either employer or employee.”

[8] On 14 January 2021, my chambers wrote to the Applicant directing that the Applicant take action to enable me to obtain information in relation to the views and circumstances of employees. Specifically, by the employer forwarding or handing to the employees covered by the Agreement a notice (the Notice) in the following terms:

“An application has been made by the Launceston Police and Community Youth Club Inc T/A Launceston PCYC to terminate the Launceston PCYC Employee Collective Agreement 2009.

The matter has been allocated to Commissioner Lee of the Fair Work Commission for determination.

If the application to terminate the Launceston PCYC Employee Collective Agreement 2009 is successful, your minimum employment entitlements will be regulated by the applicable modern award.

Commissioner Lee, when determining whether to terminate the agreement, is required to take into account the views of employees covered by the agreement.

If you have any views about the application to terminate the agreement, please advise the Commissioner by email at [email protected] or by calling [phone]. Views are to be provided to the Fair Work Commission by no later than 4.00pm on Wednesday, 20 January 2021

Once this course of action is followed, the Commissioner asks that the employer provides in writing details of the action it took to make the Notice available to employees in a statutory declaration.”

[9] On 14 January 2020, I received a statutory declaration, declared by Ms Reedman, the Club Manager of the Applicant, stating that the Notice had been emailed to all employees.

[10] No opposition to the application was received from or on behalf of any party.

[11] Having regard to the above, I am satisfied, in accordance with s. 226(a) of the Act, that it is not contrary to the public interest to terminate the Agreement. I am also satisfied, in accordance with s. 226(b) that it is appropriate to terminate the Agreement having regard to the circumstances of the employees, employers and organisations covered by the Agreement, including the likely effect that the termination will have on each of them. I am therefore required by s.226 of the Act to terminate the Agreement.

[12] In accordance with s.226 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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