Palliative Care ACT Inc

[2014] FWCA 7069

[2014] FWCA 7069

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Palliative Care ACT Inc
(AG2014/8877)

ACT HOSPICE PALLIATIVE CARE SOCIETY INC. CERTIFIED AGREEMENT 2002-2005

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 10 OCTOBER 2014

Application for termination of the ACT Hospice Palliative Care Society Inc. Certified Agreement 2002-2005.

[1] This matter involves an application made by Palliative Care ACT Inc (the Applicant) pursuant to Item 15 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The applicant has made an application for the Fair Work Commission (the Commission) to terminate the ACT Hospice Palliative Care Society Inc. Certified Agreement 2002-2005 [AG819397] (the Agreement), a collective agreement-based transitional instrument for the purposes of the Transitional Act 1 with a nominal expiry date of 29 October 2005.

[2] Item 15 of Schedule 3 of the Transitional Act provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act (the FW Act) 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. Subdivision C of Division 7 of Part 2-4 of the FW Act deals with termination of agreements by employers and employees. Section 219(1) of the FW Act provides that where an agreement covers a single employer, the employer and the employees may jointly agree to terminate it. By virtue of s.219(2) the termination has no effect unless it is approved by the Commission under s.223.

[3] The relevant procedural matters are set out in ss.220 to 222 of the FW Act. Essentially, the requirements may be summarised as follows:

• An employer covered by an agreement may request employees to approve a proposed termination of the agreement by voting for it 2;



• The employer must take all reasonable steps to notify employees of the time and place of the vote and the voting method, and must give the employees a reasonable opportunity to decide whether they want to approve the proposed termination 3;



• The termination of a single-enterprise agreement is agreed to when a majority of employees who cast a valid vote approve the termination 4;



• If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission to terminate the Agreement 5; and



• The application must be made no later than fourteen days after the termination is agreed to, unless the Commission considers it fair to extend the period 6.

[4] Section 223 provides that where an application is made under s.222 of the Act, the Commission must approve the termination of an enterprise agreement if it is satisfied that the employer gave employees a reasonable opportunity to decide whether they wanted to approve the proposed termination; the termination was agreed to as required by s.221(1); and there are no other reasonable grounds for the Commission to believe that employees have not agreed to the termination; and it considers that it is appropriate to approve the termination taking into account the views of any employee association covered by the agreement.

[5] Ms Margaret O’Shea filed a Statutory Declaration on behalf the Applicant in support of the application.

[6] Ms O’Shea outlined the process that was followed with respect to notifying employees of the Applicant’s proposal to terminate the Agreement. According to Ms O’Shea, employees were provided with a notice of the Applicant’s intention to conduct a vote regarding the proposed termination of the Agreement at a meeting on 10 July 2014. Subsequent meetings were held between 10 July 2014 to 31 July 2014, regarding the proposed termination, and an email was sent to all employees on 18 August 2014 advising of the time and dates for the vote and the voting method that would be used. The vote was held between 18 and 20 August. All six employees employed by the applicant voted in favour of terminating the agreement. Ms O’Shea also stated that no employee organisations were covered by the Agreement.

[7] The application was lodged one day outside of the relevant 14 day period stipulated in s.222(3)(a) of the Act. The Applicant contends that this was due the delay associated with obtaining the final approval of the Board of the Applicant to make the application. I accept this reason and consistent with s.222(3)(b) of the Act I extend the relevant period for making an application to 15 days, as I am permitted to do under s.222(3)(b) of the Act.

[8] Against this background, I consider it appropriate to approve the termination. The termination will take effect from midnight on 10 October 2014.

DEPUTY PRESIDENT

 1 Item 2(5)(c)(i) of Schedule 3 - the Agreement was approved under the repealed Workplace Relations Act 1996 (Cth)

 2   Fair Work Act 2009 (Cth) s.220(1)

 3   Fair Work Act 2009 (Cth) s.220(2)

 4   Fair Work Act 2009 (Cth) s.221(1)

 5   Fair Work Act 2009 (Cth) s.222(1)

 6   Fair Work Act 2009 (Cth) s.222(3)

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<Price code A, AG819397  PR556340>