DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Maybanke Association Inc. T/A Maybanke Accommodation and Crisis Support Services
(AG2021/5378)

MAYBANKE ASSOCIATION INC. ENTERPRISE AGREEMENT 2015-2018

Social, community, home care and disability services
COMMISSIONER SIMPSON	BRISBANE, 2 JULY 2021

Application for termination of the Maybanke Association Inc. Enterprise Agreement 2015-2018.

[1] Maybanke Association Inc. T/A Maybanke Accommodation and Crisis Support Services (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Maybanke Association Inc. Enterprise Agreement 2015-2018 (the Agreement) after its nominal expiry date. The Agreement’s nominal expiry date was 30 September 2018.

[2] Sections 225 and 226 of the FW Act relevantly provide:

“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;

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.”

[3] Ms Jacky Burkett, Company Secretary from the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement.

[4] Directions were issued on 14 June 2021 for the Applicant to serve a copy of the F24B Application on its employees as well as a copy of the F24C Statutory Declaration and Directions. The Directions also provided that if any employee wished to be heard on the matter, they were to file any submissions and/or evidence in relation to the Application by close of business 24 June 2021.

[5] The Applicant served a copy of the Application, Statutory Declaration and Directions on its employees on 15 June 2021.

[6] To date, no material has been received from any employees of the Applicant.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 2 July 2021.

[8] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved Maybanke Association Inc., trading as Maybanke Accommodation and Crisis Support Services, and its employees. The dispute centred on an application by the association to terminate the Enterprise Agreement 2015-2018. The application was brought before the Fair Work Commission. The central legal issue was whether the association had provided sufficient evidence to justify the termination of the enterprise agreement under section 231 of the Fair Work Act 2009. The association argued that significant changes in economic conditions, particularly those arising from the COVID-19 pandemic, had substantially affected its ability to meet its financial obligations and maintain operations, thereby justifying termination.

The Commission considered the association's evidence and submissions, evaluating the impact of the pandemic on its financial viability and operational capacity. It also assessed whether the association had taken reasonable steps to mitigate the effects of these changes. The Commission concluded that while the pandemic had indeed caused significant financial strain, the association had not provided sufficient evidence that the changes were of such a nature as to make it inappropriate to continue the agreement. The association's evidence did not sufficiently demonstrate that the changes were unforeseeable and outside its control, or that it had explored all reasonable alternatives to termination. Accordingly, the application was dismissed.

The Fair Work Commission found that the association had not met the threshold for termination under the Act and dismissed the application. No further orders were made by the Commission.

Maybanke Association Inc. T/A Maybanke Accommodation and Crisis Support Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established