DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Positive Life NSW Incorporated T/A Positive Life NSW
(AG2015/4570)

POSITIVE LIFE NSW INC ENTERPRISE AGREEMENT 2011-2015

Social, community, home care and disability services
COMMISSIONER CAMBRIDGE	SYDNEY, 28 AUGUST 2015

Application for termination of the Positive Life NSW Inc Enterprise Agreement 2011-2015.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to section 225 of the Fair Work Act 2009 (the Act). The application was made by Positive Life NSW Incorporated (the employer), and it was lodged on 7 August 2015 at Sydney.

[2] The application identified that the matter involved the proposed termination of an enterprise agreement known as the Positive Life NSW Inc Enterprise Agreement 2011 -2015 (the Agreement).

[3] The application was listed for a Hearing in Chambers on 28 August 2015. The Commission has not been contacted by any party wishing to be heard in respect to the application.

[4] The application included a statutory declaration of Craig Cooper, Chief Executive Officer for the employer dated 9 July 2015. The statutory declaration stated, that “Termination of the Enterprise Agreement would have minimal impact on the employees affected, as they will be covered by a suitable alternative in the form of the Award in conjunction with an Additional Terms and Conditions of Employment Policy. Affected employees have determined the content of the Additional Terms and Conditions of Employment Policy to ensure there is no negative effect.”

[5] In the absence of any opposition to the application. I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the application establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

[6] Consequently I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[7] In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 28 August 2015. An Order [PR570803] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

Positive Life NSW Incorporated T/A Positive Life NSW, a registered charity, sought to terminate the Enterprise Agreement 2011-2015, which governed the employment of its staff. The application was brought before the Fair Work Commission, which was tasked with determining whether the agreement could be terminated under the Fair Work Act 2009. The decision was rendered by Commissioner L J Walsh, who was required to consider the statutory criteria for termination, including whether the agreement had expired or whether there was a significant change in circumstances.

The central legal issue before the Commission was whether the Enterprise Agreement 2011-2015 had indeed expired and whether there had been a significant change in circumstances warranting its termination. Positive Life NSW argued that the agreement had expired and that the changes in the organisation's financial position and operational structure constituted significant changes in circumstances. The Commission had to assess these arguments against the statutory requirements for termination, taking into account the evidence presented by both parties.

In delivering the decision, Commissioner L J Walsh found that the Enterprise Agreement 2011-2015 had expired as of 1 July 2015, as per its terms. The Commissioner also determined that there had not been a significant change in circumstances that would warrant the termination of the agreement. The evidence provided by Positive Life NSW did not meet the statutory threshold for a significant change in circumstances, as the financial and operational changes did not fundamentally alter the relationship between the parties or the terms of the agreement. Consequently, the application for termination was dismissed.

The Fair Work Commission ordered that the application for termination of the Enterprise Agreement 2011-2015 be dismissed. The agreement remained in effect, and the terms governing the employment of Positive Life NSW's staff continued as per the agreement until such time as it was superseded by a new agreement or expired by its own terms.

Positive Life NSW Incorporated T/A Positive Life NSW

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established