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.

[2] The Agreement is a collective agreement-based transitional instrument under the TPCA Act.

[3] 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.

[4] 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

[5] 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.

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

Background

[7] 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mambourin Enterprises Ltd [2020] FWCA 4182
Case: [2020] FWCA 4182
Decision Date: 6 AUGUST 2020

CaseChat Overview and Summary

Mambourin Enterprises Limited applied to the Fair Work Commission to terminate a transitional instrument that was based on a collective agreement. The union opposed the application, as did some of the employees affected by the instrument. The application hinged on several legal issues, including the financial impact of the transitional instrument on the business, the impact on bargaining, the significance of changes to industry funding, and the effect on productivity. Additionally, the court considered the significance of other enterprise agreements in the industry, the fact that the nominal expiry date of the instrument was a decade prior to the application, and the undertaking provided to grandfather certain terms.

The Fair Work Commission found that the application should be granted and the transitional instrument terminated. The court considered the financial impact on the business and the potential for the instrument to hinder bargaining progress. The Commission also noted the significance of changes to industry funding and the effect on productivity. The court further examined the other enterprise agreements in the industry and found that they did not provide a compelling reason to maintain the transitional instrument. The nominal expiry date being a decade prior to the application and the undertaking provided to grandfather certain terms were also considered, but ultimately did not sway the decision. The court exercised its discretion as to the date of termination.

The final orders of the Fair Work Commission were that the transitional instrument be terminated, with the exact date of termination to be determined by the Commission at a later date. The union and some employees were given the opportunity to appeal the decision, but ultimately the application was successful and the transitional instrument was terminated.

Orders