Peirson Services

[2021] FWCA 7197

[2021] FWCA 7197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Peirson Services
(AG2021/8436)

Industries not otherwise assigned
COMMISSIONER MATHESON	SYDNEY, 20 DECEMBER 2021

Application for termination of the Peirson Services Workplace Collective Agreement 2009.

[1] On 17 November 2021, an application (Application) was made pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Peirson Services Workplace Collective Agreement 2009 (Agreement). A ‘Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date’ (Form F24C) was filed in support of the Application.

[2] The name of the applicant stated in the ‘Form F24B – Application for termination of an enterprise agreement after the nominal expiry date’ (Form F24B) and Form F24C was stated as “Peirson Services Limited”. An application was subsequently made to correct an error in the Form F24B and Form F24C by amending the name of the applicant to “Peirson Services”, the owner of the ABN and ACN listed in the application and name of the employer covered by the Agreement. I am satisfied that the amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. I make the amendments.

[3] The Agreement is a collective agreement-based transitional instrument made under the repealed Workplace Relations Act 1996 (Cth).

[4] Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) provides that subdivision D of Division 7 of Part 2-4 of the Act (which deals with termination of enterprise agreements by employers and employees) 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.

Legislation

[5] The relevant provisions of 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 the 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 the FWC must terminate an enterprise agreement

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

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

(b) the 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.”

Consideration – s.225

Is the Applicant an employer covered by the Agreement?

[6] Clause 1.4 names “Peirson Services” as a party to the Agreement. The Applicant is “Peirson Services” with the ACN 097 292 790 and ABN 49 097 292 790. The name “Pearson Services” is registered and linked to the ACN 097 292 790 and ABN 49 097 292 790. I am satisfied it is the same legal entity.

[7] Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement passed its nominal expiry date?

[8] Clause 1.3 of the Agreement provides that the Agreement takes effect from a date to be determined by the Workplace Authority and shall remain in force for a period of four years from that date. Having considered the materials before the Commission and clause 1.3 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.

Consideration – s.226

Section 226(a) – Public interest

[9] In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the enterprise Agreement.

Section 226(b) – Appropriateness

[10] The Application indicates that only one employer is covered by the Agreement.

[11] On 24 November 2021, the Commission directed that:

(a) by no later than 4:00pm on 25 November 2021, the Applicant must serve a copy of the directions, the Form F24B, Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement;

(b) by no later than 4:00pm on 29 November 2021, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with the direction above;

(c) by no later than 4.00pm on 2 December 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement an outline of arguments, statements of evidence or other documents the Applicant intend to rely upon in support of its application to terminate the Agreement;

(d) by no later than 4.00pm on 9 December 2021, any employee or employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement; and

(e) by no later than 4.00 pm on 13 December 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement any materials it wishes to file in reply.

[12] The Commission’s directions also noted that if any employee or employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.

[13] On 8 December 2021, Ms Madeleine Marais, Chief Executive Officer of the Applicant, filed a statutory declaration confirming compliance with the above directions, including supporting documentation.

[14] No submissions in opposition were filed by any employee or employee organisation in response to those directions.

[15] Ms Marais declares in the Form F24C that:

•  the Agreement is dated and is no longer aligned with the Social, Community, Home Care and Disability Services Industry Award 2010 (Award);

•  the Agreement was drafted to allow for residential care workers that the organisation employed at the time and that the organisation is no longer engaged in activities of this nature; and

•  if the Agreement is terminated employees will enter into individual contracts that align with the Award.

[16] Having considered the differences between the Award and Agreement it is also apparent to me that the conditions in the Award are, in a general sense and when considered together, superior to those within the Agreement.

Conclusion

[17] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

[18] Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 20 December 2021. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

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