Oak Valley (Maralinga) Aboriginal Corporation T/A Oak Valley Health & Aged Care Services

[2019] FWCA 3792

[2019] FWCA 3792

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

Oak Valley (Maralinga) Aboriginal Corporation T/A Oak Valley Health & Aged Care Services
(AG2019/1475)

YALATA - MARALINGA HEALTH SERVICE INC. ENTERPRISE AGREEMENT NO. 1 OF 1998

Northern Territory
COMMISSIONER PLATT	ADELAIDE, 31 MAY 2019

Application for termination of the Yalata - Maralinga Health Service Inc. Enterprise Agreement No. 1 of 1998.

Summary

[1] On 3 May 2019 Oak Valley (Maralinga) Aboriginal Corporation T/A Oak Valley Health & Aged Care Services (the Applicant) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) to terminate the Yalata - Maralinga Health Service Inc. Enterprise Agreement No. 1 of 1998.

[2] The matter was listed for Conference by telephone on 14 May 2019.

[3] At the Conference Mr Somes represented the Applicant as a paid agent, Mr Cowen represented the Australian Municipal, Administrative, Clerical and Services Union and Ms Lovibond represented Tullawon Health Services (Tullawon). The Australian Nursing and Midwifery Federation (ANMF) did not attend.

[4] At the conclusion of the Conference, I directed the parties to file submissions in the Commission by no later than 4:00pm on 20 May 2019.

[5] The Applicant and Tullawon filed submissions their submissions on 20 May 2019.

[6] On 20 May 2019, the ANMF advised my Chambers by email that they did not oppose the application.

[7] The Applicant’s submissions are summarised as follows:

•  The Agreement originally covered Tullawon. As a result of a transfer of business, the Applicant was covered by the Agreement.

•  The Applicant submits there is no discernible effect contrary to the public interest arising from the termination of the Agreement.

•  The Applicant submits that the employees covered by the Agreement do not oppose the termination.

•  The employee’s current conditions of employment are governed by salaried employment contract; as a result the termination will not affect the employee’s terms and conditions of employment.

•  The Applicant will face ongoing administrative burden if the Agreement is not terminated.

[8] Tullawon’s submissions are summarised as follows:

•  Tullawon supports the termination of the Agreement.

•  Current employee’s terms and conditions of employment are covered by the Aboriginal Community Controlled Health Services Award 2010.

•  Tullawon sought the views of its employees, and the employees that responded supported the termination.

•  Tullawon asserts that the termination of the Agreement will ease the administration burden.

Legislation

[9] Item 16 of Schedule 3 of the Transitional Act provides as follows:

“16 Collective agreement-based transitional instruments: termination by agreement

16(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.”

[10] The provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (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 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 FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.”

Conclusion

[11] In having regard to s.226 of the Act and based on the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to terminate the agreement taking into account all the circumstances.

[12] In accordance with s.227 of the Act, the termination will take effect from 31 May 2019.

COMMISSIONER

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