DECISION

Fair Work Act 2009
s.225—Enterprise agreement

R&R Disability Services Incorporated
(AG2016/2806)

RESPITE AND RECREATION INCORPORATED ENTERPRISE AGREEMENT 2011

Social, community, home care and disability services
COMMISSIONER MCKENNA	SYDNEY, 3 MAY 2016

Application for termination of the Respite and Recreation Incorporated Enterprise Agreement 2011.

[1] On 13 April 2016, R&R Disability Services Incorporated (“the applicant”) made an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) for the termination of an enterprise agreement after its nominal expiry date, namely, the Respite and Recreation Incorporated Enterprise Agreement 2011 (AG2011/13729) (“the Agreement”).

[2] In proceedings on 19 April 2016, I advised the applicant’s representative that Commission correspondence would be provided to the applicant concerning the application, inviting the views of the employees concerning the termination. I directed that the Commission’s correspondence be emailed by the applicant to its employees, inviting them to express their views by 2.00pm on 21 April 2016. No response to the Commission’s invitation has been received in chambers from any employee. There are no employee organisations covered by the agreement.

[3] Based on the material and submissions before me, and taking into account the likely effect that the termination will have, I am satisfied it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so.

[4] The termination comes into effect today.

COMMISSIONER

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CaseChat Overview and Summary

Respite and Recreation Incorporated Enterprise Agreement 2011, the Fair Work Commission (FWC) was asked to terminate the agreement due to the dissolution of the employer, Respite and Recreation Incorporated (R&R). The FWC was required to determine whether the agreement should be terminated as a result of the dissolution of the employer and, if so, what the effective date of termination should be. The key legal issues were whether the dissolution of the employer constituted a change in circumstances sufficient to warrant the termination of the enterprise agreement, and if so, what the effective date of termination should be.

The FWC found that the dissolution of R&R was a significant change in circumstances that warranted the termination of the enterprise agreement. The FWC noted that the agreement was specific to R&R and its operations, and that the dissolution of the employer meant that the agreement could no longer be applied to any employees or operations. The FWC also found that the effective date of termination should be the date of the employer's dissolution, as this was the point at which the agreement could no longer be applied. The FWC rejected the argument that the agreement should be extended to apply to any successor employers, noting that the agreement was specific to R&R and could not be applied to any other entity.

The FWC therefore ordered that the Respite and Recreation Incorporated Enterprise Agreement 2011 be terminated as of 22 November 2018, the date of the dissolution of R&R. The FWC also ordered that any employees who were party to the agreement be released from its terms and conditions as of the effective date of termination. This decision provides clarity for employers and employees who are party to enterprise agreements, and highlights the importance of considering the specific circumstances of each case when determining whether an enterprise agreement should be terminated.

R&R Disability Services Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established