Mambourin Enterprises Ltd

[2020] FWC 4148

[2020] FWC 4148

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

Mambourin Enterprises Ltd

(AG2019/3730)

COMMISSIONER CIRKOVIC MELBOURNE, 6 August 2020

Application to terminate collective agreement-based transitional instrument – union opposes termination – some employees oppose termination – financial impact of instrument on business – impact on bargaining – significance of change to industry funding - impact on productivity – significance of other enterprise agreements in the industry – significance of nominal expiry date being a decade prior to application – significance of undertaking provided to grandfather terms – application granted – agreement terminated - discretion as to date of termination.

1. Mambourin Enterprises Ltd (the Applicant) has made an application pursuant to Sch. 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act) with the Fair Work Commission (the Commission) to terminate the Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (the Agreement) (the Application). The nominal expiry date of the Agreement was 30 June 2009.

1. The Agreement is a collective agreement-based transitional instrument under the TPCA Act.

1. Schedule 3, Item 16 of the TPCA Act provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) (which deals with termination of enterprise agreements by employers and employees) applies in relation a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. I am satisfied that the Agreement is a collective agreement-based transitional instrument under the TPCA Act and, as stated above, that its nominal expiry date of 30 June 2009 has passed.

1. The Application is opposed by the Australian Education Union (the AEU). The AEU represents a number of the Applicant’s employees, covered by the Agreement, who deliver “day services” as part of the Applicant’s business.[1]

1. The Application was initially opposed by an individual employee of the Applicant who had sought to remain anonymous in these proceedings and made an application under section 594 of the Act for their identity to be kept confidential in the proceedings.

1. I dismissed the application for confidentiality. [2] Subsequently, the anonymous employee indicated that they no longer wished to be involved in these proceedings.

Background

1. The Applicant is a disability services provider that operates in Victoria, offering a range of services for people living with disabilities. It receives funding through the NDIS and provides a Supported Employment Program and School Leaver Employment Support across seven locations in Western Melbourne.[3]

1. The Application was lodged on 1 October 2019 together with a statutory declaration from Mr Rohan Braddy, Chief Executive Officer of the Applicant.

1. On 8 October 2019, the Applicant was issued with initial directions to provide all employees and employee organisations covered by the Agreement with a copy of those directions along with a copy of the application (and…