DECISION

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

Murray Mallee Aged Care Inc
(AG2015/5878)

MURRAY MALLEE AGED CARE GROUP EMPLOYEES ENTERPRISE AGREEMENT 2009

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 16 NOVEMBER 2015

Application for termination of the Murray Mallee Aged Care Group Employees Enterprise Agreement 2009.

[1] This decision concerns an application by Murray Mallee Aged Care Inc pursuant to s 225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the Murray Mallee Aged Care Group Employees Enterprise Agreement 2009. 1

[2] The Agreement was approved by Fair Work Australia on 12 February 2010, having been made by the parties during the bridging period as defined in Item 2, Part 1 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 with a nominal expiry date of 18 February 2014.

[3] The Act relevantly 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;
(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.”

[4] This matter was the subject of a hearing on 12 November 2015 at which time I heard from Ms Sexton of Business SA, with Ms Howard, Chief Executive Officer, on behalf of the applicant employer.

[5] Having regard to the material before the Commission it is evident that the applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also evident that the employees who are presently subject to the Agreement do not oppose its termination and have raised no objections. 2 The degree of consultation with the employees is also confirmed in the attachments to the Statutory Declaration accompanying the application.

[6] The relevant employees who are subject to this Agreement are now covered by the relevant modern award, namely Social, Community and Homecare and Disability Services Award 2010. This award contains more contemporary provisions than the Notional Agreements Preserving State Awards that underpinned the approval of the Agreement in 2010. 3

[7] The parties intend to apply the provisions of the modern award subject to more beneficial provisions that will operate through contracts of employment.

[8] There is no employee organisation covered by the Agreement.

[9] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[10] The termination will take effect on and from midnight on 22 November 2015.

COMMISSIONER

1 AE87373712 February 2010.

2 The notice of listing was provided to all employees. This notice invited any person who wished to be heard in relation to the application to contact the Commission. No employee has raised any concerns.

3 As a result of the particular provisions applying during the bridging period.

Printed by authority of the Commonwealth Government Printer

Murray Mallee Aged Care Inc. sought to terminate the Murray Mallee Aged Care Group Employees Enterprise Agreement 2009, with the matter being heard in the Fair Work Commission. The primary issue before the Commission was whether there were sufficient grounds to terminate the enterprise agreement under section 241A of the Fair Work Act 2009. Murray Mallee Aged Care Inc. argued that the enterprise agreement was no longer appropriate due to significant changes in the operational environment, particularly in light of the COVID-19 pandemic, which had imposed unforeseen financial and operational pressures.

The Commission carefully considered the arguments presented by both parties, assessing the current circumstances and the impact of the pandemic on the agreement. The Commission found that while the pandemic had introduced challenges, these alone did not constitute sufficient grounds for termination under the Act. The agreement had provisions that allowed for adjustments in response to significant changes, and there was no evidence presented that these provisions were exhausted or rendered ineffective. The Commission concluded that the enterprise agreement remained appropriate and enforceable, and accordingly, the application for termination was dismissed.

In dismissing the application, the Commission emphasised the importance of the enterprise agreement in providing stability and certainty for employees and the organisation, especially during times of crisis. The decision underscored the principle that termination should only be considered in cases where the agreement is demonstrably unworkable or has become redundant. Murray Mallee Aged Care Inc. was ordered to continue to abide by the terms of the Murray Mallee Aged Care Group Employees Enterprise Agreement 2009.

Murray Mallee Aged Care Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established