Nambour & District Care Inc

[2017] FWCA 6365

[2017] FWCA 6365

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Nambour & District Care Inc
(AG2017/5781)

NAMBOUR & DISTRICT CARE INC EMPLOYEE COLLECTIVE AGREEMENT

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 8 DECEMBER 2017

Application for termination of the Nambour & District Care Inc Employee Collective Agreement.

[1] On 27 November 2017, Nambour & District Care Inc made an application under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Nambour & District Care Inc Employee Collective Agreement (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration of Mrs Tania Collier, Manager of Nambour & District Care Inc.

[3] There are no unions covered by the Agreement.

[4] On 27 November 2017 my Associate wrote to the applicant, seeking further particulars regarding whether the views of the employees had been sought, and what steps were taken to seek these views.

[5] In correspondence to my Chambers on 28 November 2017, the applicant provided that the employees were consulted during a staff training day on 14 November 2017, and that no objections were raised by the present employees.

[6] This was further supported by submissions by the applicant, received to my Chambers on 5 December 2017.

[7] Further, on that staff training day of 14 November 2017, employees were advised that their terms and conditions of employment would be covered by the Social Community Home Care and Disability Award 2010. The staff were advised that the current rates of pay under the Agreement would remain.

Legislative provisions

[8] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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.

[9] Chapter 2, Part 2-4, Division 7, Subdivision D is 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.”

[10] Based on the material contained in the statutory declaration filed with the application, and in consideration of s.226(a), I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from today, 8 December 2017.

COMMISSIONER

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