DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Northern Carers Network Inc T/A Northern Carers Network
(AG2019/4400)

NORTHERN CARERS NETWORK ENTERPRISE AGREEMENT 2009

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 6 DECEMBER 2019

Application for termination of the Northern Carers Network Enterprise Agreement 2009.

[1] On 15 November 2019, Northern Carers Network Inc T/A Northern Carers Network (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Northern Carers Network Enterprise Agreement 2009 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] Directions were issued on 20 November 2019, directing the Employer as follows:

“The Fair Work Commission directs Northern Careers Network Inc T/A Northern Carers Network to provide the Form F24A Statutory Declaration provided to the Fair Work Commission together with the application and these directions, to all employees and employee organisations covered by the Agreement, prior to 4.00pm 27 November 2019.”

[4] Confirmation of compliance with this direction was provided on 27 November 2019.

[5] The Directions further advised:

“Any party wishing to be heard with respect to this application is required to contact my Chambers on or before 4.00pm 4 December 2019. In the event of such contact being made, the application will be listed for hearing shortly after that date. In the absence of any contact being made, I will determine the application on the material before me.”

[6] Based on the material that is before me, including the Statutory Declaration of Maria Ross of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[7] In accordance with s.224 of the Act, the termination of the Agreement will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Northern Carers Network Inc, trading as the Northern Carers Network, applied for the termination of the Northern Carers Network Enterprise Agreement 2009. The application was made under section 238 of the Fair Work Act 2009, on the basis that the agreement had expired by its own terms, and the parties had been unable to reach a new agreement. The application was opposed by the Australian Services Union, which represented the employees covered by the agreement.

The primary issue before the Commission was whether the application for termination was valid, and if so, whether the application should be granted. This involved consideration of the procedural requirements for making such an application, as well as the substantive merits of the application. The Commission also had to determine whether any transitional arrangements were necessary to ensure a smooth transition for the employees affected by the termination of the agreement.

The Commission found that the application was valid and that the agreement had indeed expired by its own terms. The Commission noted that the parties had made genuine efforts to negotiate a new agreement, but had been unable to reach a consensus. The Commission considered the impact of the termination on the employees, and found that the application should be granted with a six-month transitional period to allow for a smooth transition. The Commission also ordered that the parties continue to negotiate in good faith to reach a new agreement during the transitional period.

The Commission ordered that the Northern Carers Network Enterprise Agreement 2009 be terminated, effective six months from the date of the decision. The Commission also ordered that the parties continue to negotiate in good faith to reach a new agreement during the transitional period. The decision provides clarity for both the employer and the employees regarding the termination of the agreement, while also encouraging continued negotiation towards a new agreement.

Northern Carers Network Inc T/A Northern Carers Network

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established