Marist Youth Care Limited T/A Marist180

[2020] FWCA 5284

[2020] FWCA 5284

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

Marist Youth Care Limited T/A Marist180
(AG2020/2785)

MARIST YOUTH CARE LIMITED ENTERPRISE AGREEMENT 2008

Social, community, home care and disability services
COMMISSIONER JOHNS	SYDNEY, 2 OCTOBER 2020

Application for termination of the Marist Youth Care Limited Enterprise Agreement 2008.

[1] This decision concerns an application by Marist Youth Care Limited (Applicant), 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 Marist Youth Care Limited Enterprise Agreement 2008 (IRC8/2392) (Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act. The Agreement passed its nominal expiry date on 24 December 2009. The Australian Municipal, Administrative, Clerical and Services Union (ASU) is covered by the Agreement.

Background

[3] The application was lodged with the Fair Work Commission (the Commission) on 16 September 2020. In support of the application a Statutory Declaration dated 15 September 2020 was filed by Peter Monaghan Chief Executive Officer (the Declaration). The Declarationoutlined the background to the application, including the steps the Applicant took to ensure the views of Marist180’s employees and the ASU were taken into consideration and what the likely effect of the termination of the Agreement would be on employees of Marist180.

[4] The Declaration asserted that:

•  if the Agreement was terminated employees would be better off overall, as the Agreement only provides for shift loading to be applied from 2pm, however, the Social, Community, Home Care and Disability Services Industry Award 2010 (Award) provides for shift loading for the duration of the whole shift. Further, the Award provides for that for any shift (Monday – Friday) which finishes after 12am or commences before 6am the night shift loading of 15% applies for the whole shift.

•  termination of the Agreement would provide the Applicant with more flexibility to roster staff as the rostering provisions in the Agreement no longer reflected the operational needs of the Respondent.

•  The salary Packaging arrangements in the Agreement would still apply.

•  The rosters agreed to during the roster standardisation project, which was undertaking by the ASU and the Respondent in 2019 will remain in place, unless the needs of the business change. If there was to be any major changes to the rostering, ay changes that would be required would comply with the consultation clause requirements per the Award.

[5] The matter was listed for a mention hearing on 1 October 2020. At this hearing, Linda Everingham for the ASU, confirmed that the ASU did not oppose the termination of the Agreement.

[6] The Commission must give consideration to the following legislation to determine whether it is viable to terminate the Agreement.

The relevant legislation

[7] 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.”

[8] 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.”

[9] 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.

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

[11] The termination will take effect from the date of this decision, 2 October 2020.

COMMISSIONER

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