Multiple Sclerosis Society of Queensland

[2013] FWCA 5467

[2013] FWCA 5467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Multiple Sclerosis Society of Queensland
(AG2013/7338)

AHC QLD SUPPORT WORKERS AGREEMENT 2009-2012

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 7 AUGUST 2013

Application for termination of the AHC QLD Support Workers Agreement 2009-2012.

[1] On 2 July 2013 the Multiple Sclerosis Society of Queensland (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (the Act) for termination of the AHC QLD Support Worker’s Agreement 2009-2012 (the Agreement) after its nominal expiry date.

[2] The Agreement was originally approved by a decision of Fair Work Australia (as the Commission was then known) on 24 February 2010. The Agreement commenced on 3 March 2010, in accordance with s.54 of the Act, and its nominal expiry date was 2 March 2013. The Agreement was originally made by Australian Home Care Services P/L T/A Australian Home Care Services Unit Trust, however, on 16 May 2011 the Applicant assumed the care arrangements covered by the Agreement and as a result of this transfer of business the Agreement transferred to the Applicant. The Agreement does not cover any employee organisations.

[3] The Act outlines the steps to be taken in terminating an enterprise agreement after its nominal expiry date 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;

(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.

[4] I am satisfied the Agreement has passed its nominal expiry date and that the application for termination of the Agreement was lodged by an employer covered by the Agreement.

[5] The Applicant provided material in support of its application and evidence to support the matters under s.226 of the Act. In addition, a hearing was held on 7 August 2013 to hear further submissions from the Applicant in support of its application.

[6] Having regard to the matters in s.226 of the Act and the material provided I am satisfied that it is not contrary to the public interest to terminate the Agreement. The Applicant provided evidence that of the six employees covered by the Agreement, they had each been notified of the proposal to terminate the Agreement and none had raised an objection to the proposed termination. The Applicant provided further evidence that terminating the Agreement would pose no economic disadvantage to the employees as the terms and conditions of the Social, Community, Home Care and Disability Services Award 2010 are more generous than those of the Agreement.

[7] Being satisfied that the Agreement has passed its nominal expiry date, was lodged by an employer covered by the Agreement, and taking into account the material provided relevant to s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved. The Agreement is terminated with effect from 18 August 2013.

COMMISSIONER

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