Sarah-Jane Fletcher

[2022] FWCA 4134

[2022] FWCA 4134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Sarah-Jane Fletcher

(AG2022/3719)

Supported Lifestyles Australia Pty Ltd Employee Collective Agreement 2009

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 28 NOVEMBER 2022

Application for termination of the Supported Lifestyles Australia Pty Ltd Employee Collective Agreement 2009

1. Ms Sarah-Jane Fletcher (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Supported Lifestyles Australia Pty Ltd Employee Collective Agreement 2009 (the Agreement) after its nominal expiry date.

1. The Agreement is a single enterprise agreement and has reached its nominal expiry date. The Agreement is a collective agreement-based transitional agreement. Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, provides that Subdivision D of Division 7 of Part 2-4 of 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 as collective agreement-based transitional instrument.

1. Section 225 and 226 of the Act relevantly provides:

“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.”

1. The matter was listed for a Directions Hearing on 8 October 2022. Directions were issued this same day for Seasons Living (the Employer) to serve a copy of the F24B Application on its employees as well as a copy of the F24C Statutory Declaration and Directions. The Directions also provided that the Employer was to file any submissions or witness statement by 7 November 2022, and if any employee wished to be heard on the matter, they were to file any submissions and/or evidence in relation to the Application by 14 November 2022.

1. The Employer confirmed, by way of email on 10 October 2022 that it had served a copy of the Application, Statutory Declaration and Directions on its employees.

1. To date, the Commission has received the views of three employees of the Employer.  The Employer also filed written submissions and a witness statement in accordance with the Commission’s directions.

1. The matter was listed for hearing on 24 November 2022. At the commencement of the hearing the parties consented to a private conference being conducted. In the course of the private conference the parties came to an agreement and consented to the Agreement being terminated effective from 30 June 2023.   The hearing was resumed and both parties confirmed on the record their consent to the application being granted by the Commission on the basis that the decision of the Commission did not have effect until 30 June 2023. 

1. I have taken into account the submissions and foreshadowed evidence already filed.   I have taken into account the views of the parties having reached a consent position.  I am satisfied that it is not contrary to the public interest to grant the application. Employees of the Employer have been given the opportunity to be heard in this matter, and I have taken into account the views of those employees who have taken the opportunity provided to express a view. 

1. I have also taken into account the views of the Employer who has expressed consent to the granting of the application on the basis of a delay in date of effect of the decision.

1. I have also taken into account the circumstances of the employees, and the Employer.  I have noted that the Employer is currently paying rates of pay in excess of the minimum rates that would apply under the relevant modern awards, however certain other existing conditions in the Agreement are inferior to conditions in the Modern Awards.  I have also taken into account that the Employer has advised the Commission that it has issued Notice of Employee Representational Rights (NERR) to its employees, and intends to endeavour to conclude a new enterprise agreement with its workforce before the date on which this decision would have effect, if the Commission granted the application and adopted the consent position of the parties as the operative date of the decision.

1. Having taken into account the relevant considerations under the Act, I consider that termination of the Agreement is appropriate. I have also determined that the termination of the Agreement will take effect from 30 June 2023.

1. I Order accordingly.

COMMISSIONER

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