MOIRA INC

[2015] FWCA 2924

[2015] FWCA 2924

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

MOIRA INC
(AG2015/2189)

MOIRA INTERCHANGE CAMPS, MOIRA CARE AND YOUTH GROUPS CERTIFIED AGREEMENT 2002

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 28 APRIL 2015

Application for termination of the Moira Interchange Camps, Moira Care and Youth Groups Certified Agreement 2002.

[1] This decision concerns an application by MOIRA INC (the employer), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (the Act).

[2] The application seeks to terminate the Moira Interchange Camps, Moira Care and Youth Groups Certified Agreement 2002 (the Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 20 February 2006.

The relevant legislation

[3] 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.”

[4] 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.”

[5] A statutory declaration was received from Mr Warwick Cavanagh, Chief Executive Officer of the employer, dated 27 April 2015. The statutory declaration explained the reasons for seeking termination of the Agreement. These were that the Agreement, in the past, had covered more than 150 MOIRA direct support workers (mainly MOIRA Care). However, the service was wound up in September 2014 and these employees were no longer covered by the Agreement. Approximately 25 MOIRA recreation workers still remain covered by the Agreement, however, with administration of the Agreement being complex and cumbersome.

[6] Termination of the Agreement will result in the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) applying to the remaining employees. The impact of the termination of the Agreement on these employees’ terms and conditions will be an overall increase in their terms and conditions. For example, the Agreement does not provide for a loading for working afternoon shift or night shift.

[7] No submissions that the termination of the Agreement would be contrary to the public interest have been received by the Fair Work Commission.

[8] On the basis of the material before me, I am satisfied that 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, I have considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

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

[10] The termination will take effect from today’s date, 29 April 2015.

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