New Horizons Enterprises Limited

[2021] FWCA 6808

[2021] FWCA 6808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

New Horizons Enterprises Limited
(AG2021/7608)

NEW HORIZONS ENTERPRISES LIMITED (SUPPORTED EMPLOYEES) CERTIFIED AGREEMENT 2001

Health and welfare services
COMMISSIONER MATHESON	SYDNEY, 23 NOVEMBER 2021

Application for termination of the New Horizons Enterprises Limited (Supported Employees) Certified Agreement 2001.

[1] On 27 September 2021, New Horizons Enterprises Limited (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the New Horizons Enterprises Limited (Supported Employees) Certified Agreement 2001 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

[2] The Agreement is a collective agreement-based transitional instrument made under the repealed Workplace Relations Act 1996 (Cth). It was approved by Senior Deputy President Kaufman of the Australian Industrial Relations Commission on 12 November 2001. 1

[3] The nominal expiry date of the Agreement is 12 November 2002.

Legislation

[4] Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) provides that subdivision D of Division 7 of Part 2-4 of the Act (which deals with termination of enterprise agreements by employers and employees) 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.

[5] The relevant provisions of the Act are 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.”

Consideration – s.225

Is the Applicant an employer covered by the Agreement?

[6] Clause 1.4 of the Agreement names New Horizons Enterprises Limited as a party to the Agreement. The Applicant is New Horizons Enterprises Limited and I am satisfied it is the same legal entity.

[7] Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement passed its nominal expiry date?

[8] The Agreement is a collective agreement-based transitional instrument made under the repealed Workplace Relations Act 1996 (Cth). Subitem 16(2) of Schedule 3 of the TPCA Act has the effect that the Agreement’s nominal expiry date is taken to be the end of the period of the Agreement for the purposes of the Application.

[9] Clause 1.5 of the Agreement provides that the Agreement will operate for a period of one year from the date of certification.

[10] Having considered the materials before the Commission and clause 1.5 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.

Consideration – s.226

Section 226(a) – Public interest

[11] The Applicant submits that the termination of the Agreement is not contrary to public interest.

[12] In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

Section 226(b) – Appropriateness

[13] I am required to take into account the views of the employees, each employer, and each employee organisation (if any), covered by the Agreement.

[14] On 30 September 2021, the Commission directed that:

(a) by no later than 4:00pm on 13 October 2021, the Applicant must serve a copy of the directions, the Form F24B, Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement;

(b) by no later than 4:00pm on 15 October 2021, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with the direction above;

(c) by no later than 4.00pm on 27 October 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application to terminate the Agreement;

(d) by no later than 4.00pm on 3 November 2021, any employee or employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement; and

(e) by no later than 4.00 pm on 8 November 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement any materials it wishes to file in reply.

[15] The Commission’s directions also noted that if any employee or employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.

[16] On 14 October 2021, Mr Andrew Warner, People and Business Enabler – Employee Relations of the Applicant, filed a statutory declaration confirming compliance with the above directions.

[17] No submissions in opposition were filed by any employee or employee organisation in response to those directions.

[18] No employee organisations are covered by the Agreement.

[19] I am required to take into account the circumstances of the employees, each employer, and each employee organisation (if any), covered by the Agreement, including the likely effect that the termination will have on each of them.

[20] The Applicant employs 114 parttime supported employees and one full time supported employee who are engaged in light packing, manufacture and assembly tasks. These employees are covered by the Supported Employment Services Award 2020 (Award) and the Agreement applies to them.

[21] The Agreement commenced operation from the first full pay period on or after 12 November 2001 and the Applicant submitted that the Agreement now has limited application to these employees. In particular, the Applicant submitted:

•  The regulatory framework has markedly changed since 2001 with the introduction of the Act and associated modern awards.

•  Since 2010 the terms and conditions of the Award that covers the supported employees has caught up and surpassed the terms and conditions within the Agreement. In support of this contention, the Applicant provided a document setting out a comparison of key terms in the Award and the Agreement.

•  It undertook a consultation process with employees between late August and 22 September 2021 via group information sessions, face to face meetings, Zoom meetings and telephone. Support persons were involved. Employees were provided with the opportunity to express their opinion either being in favour of or not being in favour of the proposed changes (i.e. proposed termination of the Agreement). At the conclusion of the consultation period, the results indicated the majority of employees were in favour.

Conclusion

[22] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

[23] Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 22 November 2021. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

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<AG811784  PR736049>

 1   [PR911166].