Schools Ministry Group Incorporated

[2020] FWCA 1361

[2020] FWCA 1361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Schools Ministry Group Incorporated
(AG2020/403)

SCHOOLS MINISTRY GROUP & SMG COMMUNITY SUPPORT EMPLOYEES ENTERPRISE AGREEMENT 2009

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 13 MARCH 2020

Application for termination of the Schools Ministry Group & SMG Community Support Employees Enterprise Agreement 2009.

[1] On 19 February 2020 Schools Ministry Group Incorporated (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Schools Ministry Group & SMG Community Support Employees Enterprise Agreement 2009 (the Agreement).

[2] The Agreement was approved by Fair Work Australia (as it then was) on 17 February 2010, having been made by the parties during the bridging period as defined in Item 2, Part 1 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. I observe that this meant that the Agreement was, for the purposes of the Better Off Overall Test of s.193 of the Act, assessed against an instrument other than the relevant modern award.

[3] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

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

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

[4] Based on the material before me; that is, the Form F24 application and the Form F24A Statutory Declaration sworn by Mr George Benzier, General Manager – People and Culture of the Employer, and the advice provided to me from Mr Benzier and Mr Chant – Chief Executive Officer and from some of the employees concerned, Mr Coomb, Ms Radulescu and Ms Schulz at a telephone hearing convened on 13 March 2020, I am satisfied that the requirements of s.223 of the Act have been met.

[5] In particular, I am satisfied that the Employer has complied with the requirements of ss.221 and 222 of the Act and that there are no reasonable grounds for believing that the employees, all of whom have supported the termination, have not genuinely agreed to that course of action.

[6] I also consider that it is appropriate to approve the termination of the Agreement given the support of all parties, the fact that with the termination the parties will become subject to the more contemporary terms of the Clerks – Private Sector Award 2010, and the steps taken by the employer to ensure that the beneficial terms of Agreement are maintained. In that regard, I would observe that any contracts of employment utilized by the parties will need to ensure that all terms and conditions of employment are not inferior to any of the terms and payments required by the relevant modern award and the National Employment Standards.

[7] Given the above findings, the Commission is obliged to terminate the Agreement under s.222 of the Act and I so determine.

[8] In accordance with s.224 of the Act, the termination will come into effect at 11.59pm Friday 13 March 2020.

COMMISSIONER

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