Lifeline Australia T/A Lifeline Northern Beaches

[2016] FWCA 1520

[2016] FWCA 1520

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

Lifeline Australia T/A Lifeline Northern Beaches
(AG2016/2229)

Social, community, home care and disability services
COMMISSIONER JOHNS	MELBOURNE, 9 MARCH 2016

Application for termination of the Lifeline (MWP) Enterprise Agreement 2002 (IRC02/5149) (EA02/323).

[1] This decision concerns an application by Lifeline Northern Beaches Incorporated(LNBI), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (Act).

[2] The application seeks to terminate the Lifeline (MWP) Enterprise Agreement 2002 [IRC02/5149] (EA02/323) (Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act, with a nominal expiry date of 15 October 2005.

The relevant legislation

[3] Item 16 of Schedule 3 of 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] Subdivision D of Division 7 of Part 2-4 of the Act states:

“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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] The application was supported by detailed submissions from Ms Cate Sinclair, CEO, on behalf of the LNBI, dated 28 January 2016.

[6] The submissions outlined the background to the application. It was stated that cancellation of the Agreement would provide an immediate benefit to staff, indicating employees have been, and will continue to receive the pay rates as prescribed by the relevant Awards (see clause 4 of Agreement), which are higher than the rates prescribed in the Agreement.

[7] Submissions were made in regard to overtime pay. Outlining a benefit to employees will ensue following the termination of the agreement, which does not provide any provision for the payment of overtime.

[8] Further, submissions outlined that the Agreement did not capture all roles within the organisation, creating a two tier system against the Award. It was submitted that the termination of the Agreement will positively affect staff by eliminating any possible confusion in regard to their current contractual arrangements.

[9] On 23 November 2015 all employees were provided with a one page notice of proposed termination, summarising the reasons a termination is being sought. In the notice it was advanced that the age of the Agreement and lack of relevance were primary to the application. The notice further went on to extend an invitation to all employees to three separate information sessions on the 2, 8 and 9 of December 2015, to elaborate on any remaining issues and provide a forum for employees to ask questions. The notice also invited employees to provide any feedback in writing or by contacting Ms Sinclair by telephone.

[10] In her affidavit Ms Cate Sinclair details that 15 staff chose to attend the above mentioned meetings, representing approximately 25% of all staff. All but one who attended were in favour of the proposed termination, with the remaining employee maintaining a neutral position. Further, no written or oral feedback opposing the termination was received.

[11] On 9 February 2016 the Commission issued Directions inviting any employee or any organisation which might oppose the termination of the Agreement to file submissions by 17 February 2016, detailing why the Agreement should not be terminated.

[12] Ms Cate Sinclair explained that there was an overwhelming response from employees, in that they were in favour of the application. Given no submissions in reply to the Directions issued were received from any employees or any relevant organisation; the Commission is left in a position where the only evidence before it is the evidence of Ms Cate Sinclair.

[13] No submissions that the termination of the Agreement would be contrary to the public interest were received.

[14] On the basis of the material before it, the Commission is satisfied that the termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act). Further, in accordance with section 226(b) of the Act, the Commission has considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

[15] Therefore, in accordance with section 226 of the Act, the Commission must terminate the Agreement. The application to terminate the Agreement is approved.

[16] The termination will take effect from today, 9 March 2016.

COMMISSIONER

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<Price code A, [IRC02/5149], PR577834>