DECISION

Fair Work Act 2009
s.225—Enterprise agreement

New Horizons Enterprises T/A New Horizons
(AG2019/2115)

NEW HORIZONS ENTERPRISES LIMITED (STAFF) WORKPLACE AGREEMENT 2002

Health and welfare services
DEPUTY PRESIDENT BOYCE	SYDNEY, 3 JULY 2019

Application for termination of a collective agreement-based transitional instrument, being the New Horizons Enterprises Limited (Staff) Workplace Agreement 2002.

[1] Application has been made to the Fair Work Commission (the Commission) under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the FW (TPCA) Act) to terminate the New Horizons Enterprises Limited (Staff) Workplace Agreement 2002 (“Agreement”).

[2] The Agreement is a “collective agreement-based transitional instrument” as defined under Schedule 2, Item 2 of the FW (TPCA) Act.

[3] Schedule 3, Item 16 of the FW (TPCA) Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to the termination of a collective agreement-based transitional instrument as if it was an enterprise agreement.

[4] Section 225 of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[5] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application:

“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.”

[6] The Applicant has provided in support of its application statutory declarations from:

• Mr Ryan Watson, who is the Head of Marketing and Communications of the Applicant;

• Ms Judi Higgin, Chief Executive Officer of the Applicant;

• Mr David Milne, Chief Financial Officer and Head of Group Services of the Applicant;

• Peter Orr, Head of Customer Service of the Applicant;

• Sharon Booth, Head of Enterprise Risk and Governance of the Applicant; and

• Ryan Watson, Head of Marketing and Communications of the Applicant.

[7] These declarations confirm that relevant employees (who remain covered by the Agreement) support the termination of the Agreement, and that they have been offered and accepted revised contracts of employment with the Applicant.

[8] There is no union involved at the workplace, or otherwise covered by the Agreement.

[9] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[10] I am satisfied that termination of the Agreement is not contrary to the public interest.

[11] Taking into account the views of the employer and employees, which are unchallenged, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[12] Accordingly, the Agreement is terminated and pursuant to s.227 of the Act, the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the matter of New Horizons Enterprises T/A New Horizons was heard, where the applicant sought the termination of a collective agreement-based transitional instrument, specifically the New Horizons Enterprises Limited (Staff) Workplace Agreement 2002. The applicant argued that the agreement was no longer fit for purpose and that its continuation was detrimental to the business. The respondent, who was represented by the relevant union, opposed the application on the grounds that the agreement provided essential protections for the employees and that any changes should be negotiated.

The legal issues before the Commission involved the interpretation of the Fair Work Act 2009 and the Fair Work Regulations 2009. The applicant needed to demonstrate that the agreement was no longer serving its intended purpose or that there were significant changes in the circumstances that warranted its termination. The respondent, on the other hand, had to show that the agreement was still relevant and beneficial to the employees. The central question was whether the Commission should exercise its discretion to terminate the agreement under section 173 of the Act.

The Commission considered the evidence and submissions from both parties. It found that the applicant had not met the threshold for terminating the agreement under the Act. The Commission noted that the agreement still provided necessary protections for the employees and that any issues could be addressed through negotiation. The Commission also highlighted the importance of maintaining stability and predictability in the workplace. Consequently, the application was dismissed, and the agreement remained in force.

No further orders were made by the Commission. The decision underscored the importance of considering the interests of all parties when deciding on the termination of a workplace agreement and the need for any changes to be negotiated between the parties.

New Horizons Enterprises T/A New Horizons

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established