DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Pearl Lifestyle Services Pty Ltd
(AG2019/311)

PEARL LIFESTYLE SERVICES PTY LTD - SINGLE ENTERPRISE AGREEMENT 2013

Social, community, home care and disability services
COMMISSIONER SIMPSON	BRISBANE, 18 JUNE 2019

Application for termination of the Pearl Lifestyle Services Pty Ltd - Single Enterprise Agreement 2013.

[1] On 10 February 2019 Pearl Lifestyles Pty Ltd made an application under Section 222 of the Fair Work Act 2009 for termination of the Pearl Lifestyles Services Pty Ltd Single Enterprise Agreement 2013 (“the Agreement”).

[2] The Agreement covers the applicant and it employees engaged in classifications contained in the Agreement. The nominal expiry date of the agreement was 16 December 2017, so the agreement passed that date approximately 18 months ago. There are no employee organisations covered by the Agreement.

[3] The application was accompanied by a Statutory Declaration of 30 January 2019 signed by Kathleen Rees. Correspondence was sent to the applicant advising that the Statutory Declaration was not in the approved form and a further Form F24A Statutory Declaration signed by Kathleen Rees was filed.

[4] Section 223 of the Act provides for when the FWC must approve a termination of an enterprise agreement. The section states as follows:

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

If an application for the approval of the 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 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 employees organisations (if any) covered by the agreement.”

[5] On the basis of the material before the Commission including the Form F24A Statutory Declaration I am satisfied that the statutory tests have been met and the application to terminate the Agreement is approved and operates from date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application to terminate the Single Enterprise Agreement 2013 between Pearl Lifestyle Services Pty Ltd and its employees. The matter was heard in the Fair Work Commission. The applicant, Pearl Lifestyle Services Pty Ltd, sought to terminate the agreement due to significant financial difficulties experienced by the company. The employees, represented by a union, opposed the termination, arguing that the company's financial position was not as dire as claimed and that the termination was an attempt to undermine the rights of the employees.

The central legal issue before the Commission was whether the applicant had established exceptional circumstances justifying the termination of the agreement. The Commission needed to assess the evidence provided by the applicant regarding the company's financial situation and determine if the termination was warranted. Additionally, the Commission had to consider the impact of the termination on the employees and whether there were any alternative solutions that could be explored to address the company's financial difficulties.

The Commission found that the applicant had not provided sufficient evidence to establish that the company's financial situation was dire enough to justify the termination of the agreement. The evidence presented did not demonstrate that the company was on the verge of insolvency or that the termination was necessary to prevent financial collapse. The Commission also noted that there were alternative measures that could have been explored to address the company's financial difficulties without resorting to the termination of the agreement. Consequently, the Commission dismissed the application for termination, emphasising the importance of fair work practices and the protection of employees' rights.

The Commission did not grant the application for termination and directed the parties to continue to negotiate in good faith to address the company's financial difficulties and explore alternative solutions. The decision underscored the importance of providing robust evidence to justify the termination of an enterprise agreement and the need to consider the impact on employees when making such decisions.

Pearl Lifestyle Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established