Novita Children’s Services

[2021] FWCA 299

[2021] FWCA 299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Novita Children’s Services
(AG2020/4154)

SPASTIC CENTRES OF SA INC (SCOSA) (2011) AGREEMENT

Social, community, home care and disability services
COMMISSIONER PLATT	ADELAIDE, 21 JANUARY 2021

Application for termination of the Spastic Centres of SA Inc (scosa) (2011) Agreement.

[1] The Fair Work Commission has received an application for the termination of the Spastic Centres of SA Inc (scosa) (2011) Agreement (the Agreement)pursuant to s.222 of the Fair Work Act 2009 (the Act).

Relevant Legislation

[2] Sections 222 and 223 of the Act are relevant to this application and are as follows:

“222 Application for the FWC's approval of a termination of an enterprise agreement

Application for approval

(1)  If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)  The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)  The application must be made:

(a)  within 14 days after the termination is agreed to; or

(b)  if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.

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] The Agreement has a nominal expiry date of 30 June 2014 and covers 215 employees.

[4] On 8 September 2020, an application pursuant to s.222 of the Act was filed to terminate the Agreement (AG2020/2688). On 10 November 2020, following concerns raised by the Commission and the Australian Services Union (ASU), the application was withdrawn.

[5] Attached to the current application was a Statutory Declaration of Ms Andrea Collett, Executive Manager, People, which is relevantly summarised as follows:

•  From 11 November to 10 December 2020, face-to-face meetings were held at each ‘scosa’ Hub to discuss the Agreement. An employee information pack on the proposed termination of the Agreement and a copy of the Agreement were provided to employees at the meetings.

•  On 4 December 2020, the Applicant wrote to employees to provide advance notice of the voting period and electronic copies of the employee information pack, Agreement and a link to the relevant Modern Award. The Applicant also provided a commitment to honour clause 33 of the Agreement, including introducing this condition to Novita SCHADS employees, and reducing the qualifying period from 6 months to 3 months. Clause 33 of the Agreement provides as follows:

“A superannuation contribution of 9% will be paid into an approved superannuation fund by scosa based on the standard government funding for paid parental leave. This will apply for eligible staff that commences parental leave on or after July 2012. The 9% will be paid in a lump sum when the staff member returns from parental leave and has resumed a regular pattern of work for a 6 month continuous period. The amount to be paid will be based upon the government entitlement (full or pro rata) for staff members whose parental payments have been processed by scosa payroll. NOTE: Eligible staff members must have completed 12 months continuous service prior to accessing parental leave for their government funded leave to be processed by scosa payroll."

[6] On 21 January 2021, the ASU advised that it did not seek to object to the application.

[7] I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreement.

[8] The termination will come into effect from the date of this decision.

COMMISSIONER

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