DECISION

Fair Work Act 2009
s.225—Enterprise agreement

MOVE muscle, bone & joint health Ltd
(AG2018/989)

ARTHRITIS VICTORIA ENTERPRISE AGREEMENT 2011-2014

Social, community, home care and disability services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 24 APRIL 2018

Application for termination of the Arthritis Victoria Enterprise Agreement 2011-2014.

[1] This decision follows an application made on 15 March 2018 by MOVE muscle, bone & joint health Ltd, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Arthritis Victoria Enterprise Agreement 2011-2014 (the Agreement).

[2] The Agreement had a nominal expiry date of 31 December 2014.

[3] The Act provides as follows:

“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.

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.”

[4] The matter was listed for Non-Attendance Hearing on 20 April 2018 and parties were to contact Chambers if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[5] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the requirements of s.226 of the Act, the Agreement is terminated.

[6] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

MOVE Muscle, Bone & Joint Health Ltd sought the termination of the Arthritis Victoria Enterprise Agreement 2011-2014 in the Fair Work Commission. The dispute centred on the employer's assertion that the agreement had become redundant due to the dissolution of Arthritis Victoria and its merger with MOVE Muscle, Bone & Joint Health Ltd. The applicant argued that the agreement should be terminated as the organisations involved had effectively ceased to exist in their previous forms, and a new agreement was necessary to reflect the current operational realities.

The court had to determine whether the enterprise agreement could be terminated due to the merger and if such a termination would be in the interests of the employees. The issues also included whether there were any obligations to provide transitional arrangements for employees under the old agreement during the period before a new agreement could be negotiated.

The Fair Work Commission considered the implications of the merger on the existing enterprise agreement and weighed the arguments presented by both parties. The Commission found that the agreement could be terminated due to the significant changes in the organisational structure and operations. However, the Commission also recognised the need to protect the interests of employees during the transition. Consequently, the Commission ruled that the agreement would be terminated, but it mandated that the employer must provide transitional arrangements to ensure that employees would not be adversely affected during the period before a new agreement could be negotiated. The decision was made with careful consideration of the impact on employees and the need for a smooth transition to the new organisational structure.

MOVE muscle, bone & joint health Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established