MacKillop Family Services Limited T/A MacKillop Family Services
[2019] FWCA 7647
•13 NOVEMBER 2019
| [2019] FWCA 7647 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
MacKillop Family Services Limited T/A MacKillop Family Services
(AG2019/2223)
CARA INC RESIDENTIAL AND SUPPORT SERVICES ENTERPRISE AGREEMENT 2009
| Health and welfare services | |
| COMMISSIONER GREGORY | MELBOURNE, 13 NOVEMBER 2019 |
Application for termination of the Cara Inc Residential and Support Services Enterprise Agreement 2009.
On 25 June 2019 MacKillop Family Services Limited T/A MacKillop Family Services (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Cara Inc Residential and Support Services Enterprise Agreement 2009 [AE874870] (the Agreement).
The Agreement has a nominal expiry date of 23 March 2013. No employee organisation was covered by the Agreement.
The relevant provisions of the Act are as follows:
“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.”[1]
A statutory declaration was received in the form of F24C by the Applicant, Ms Amanda Jakovac, HR Manager, Employee and Industrial Relations, signed June 2019 declaring that the Applicant had consulted with the employees via written communication and were consulted verbally on several occasions. Employees were also invited to share their views and to vote on whether they agreed to the termination of the Agreement by using Survey Monkey. Twelve out of the thirteen employees voted with 12 out 12 employees voted yes. Employees will not be disadvantaged by the termination of the Agreement.
As the statutory declaration received by the Commission dated June 2019 was signed without the day of the month included in the date, the Commission requested that this form be submitted again by the applicant with the full and correct date that it was sworn and declared in front a person with the authority to witness statutory declarations. The applicant provided the Commission with a version of the Form F24C signed on the date it was sent to the Commission, 12 November 2019, as witnessed by the Applicant’s in-house counsel who had the authority to do so.
Consequently, I am satisfied that is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the Applicant’s statutory declaration.
The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of the decision.
COMMISSIONER
[1] Fair Work Act 2009 (Cth) ss 225-7.
Printed by authority of the Commonwealth Government Printer
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