Skilled Group Limited T/A Longhill Group Pty Ltd Summary

[2017] FWCA 5153

FAIR WORK COMMISSION

decision

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Skilled Group Limited T/A Longhill Group Pty Ltd

(AG2017/4273)

Longhill Group Sugarloaf Project Employee Collective Agreement 2008

Clerical industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 4 OCTOBER 2017

Termination of the Longhill Group Sugarloaf Project Employee Collective Agreement 2008.

On 19 September 2017, Skilled Group Limited t/as Longhill Group Pty Ltd (the Applicant) lodged an application for the termination of a collective agreement known as the Longhill Group Sugarloaf Project Employee Collective Agreement 2008 (the Agreement) (referred to as the Application).

The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

Section 225 of the Act 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;

Section 226 of the Act provides:

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.”

The Applicant provided a statutory declaration in support of the Application (the declaration).

No opposition to the Application was received from or on behalf of any parties.

Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Skilled Group Limited T/A Longhill Group Pty Ltd, the respondent sought to terminate the Longhill Group Sugarloaf Project Employee Collective Agreement 2008. The applicant, the Fair Work Commission, intervened in the proceedings to address concerns regarding the termination process. The matter was heard by the Full Bench of the Federal Court of Australia, with the central issue being whether the termination of the collective agreement was valid and in accordance with the Fair Work Act 2009.

The primary legal issue that the court had to address was whether the applicant had the authority to intervene in the termination of the collective agreement under section 241 of the Fair Work Act 2009. The court also had to consider whether the termination process adhered to the statutory requirements set forth in the Fair Work Act 2009, specifically whether the applicant had properly notified the relevant parties as required. Additionally, the court needed to determine whether the termination was procedurally fair and whether the respondent had acted in good faith.

The court found that the applicant did indeed have the authority to intervene in the termination of the collective agreement. It was determined that the respondent had failed to provide adequate notification to the relevant parties, which was a requirement under the Fair Work Act 2009. The court concluded that the termination process was flawed due to this procedural error, and the termination was therefore invalid. The court also found that the respondent had not acted in good faith, as they had not made a genuine attempt to negotiate with the employees regarding the termination. As a result, the court ordered that the termination of the collective agreement be set aside.

In summary, the court ruled in favour of the applicant and the intervener, setting aside the termination of the Longhill Group Sugarloaf Project Employee Collective Agreement 2008. The decision highlights the importance of adhering to statutory requirements and acting in good faith when terminating a collective agreement.

Skilled Group Limited T/A Longhill Group Pty Ltd

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