Smile-A-Mile Fun Bus and Toy Library Incorporated T/A Smile-A-Mile Fund Bus & Toy Library Inc.

[2018] FWCA 3306

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

Smile-A-Mile Fun Bus and Toy Library Incorporated T/A Smile-A-Mile Fund Bus & Toy Library Inc.

(AG2018/2297)

Smile - A - Mile Fun Bus and Toy Library Incorporated Certified Agreement 1998

Northern Territory
Commissioner Wilson	MELBOURNE, 6 JUNE 2018

Application for termination of the Smile - A - Mile Fun Bus and Toy Library Incorporated Certified Agreement 1998.

On 30 May 2018 Smile-A-Mile Fun Bus and Toy Library Incorporated T/A Smile-A-Mile Fund Bus & Toy Library Inc. filed an application pursuant to Item 16, Schedule 3 of the Fai Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”) to terminate the Smile - A - Mile Fun Bus and Toy Library Incorporated Certified Agreement 1998 (“the Agreement”).

The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

Item 16, Schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 ("the FW Act") applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

I am satisfied that each of the requirements of s.226 of the FW Act as are relevant to this application for termination have been met.

In accordance with s.227 of the FW Act, the termination will come into effect on 6 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Smile-A-Mile Fun Bus and Toy Library Incorporated T/A Smile-A-Mile Fund Bus & Toy Library Inc., sought the termination of the Smile-A-Mile Fun Bus and Toy Library Incorporated Certified Agreement 1998. The application was made to the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The dispute centred around the continued applicability and relevance of the certified agreement in light of significant changes in the organisation's operational structure and workforce composition.

The primary legal issues the Commission had to address included whether the certified agreement was still fit for purpose given the organisational changes and whether the application satisfied the statutory requirements for termination. This involved examining whether the changes were substantial enough to warrant the termination of the agreement and whether the application met the criteria under section 237 of the Act. Additionally, the Commission considered whether there were any valid reasons to maintain the agreement despite the changes.

In its decision, the Fair Work Commission found that the application satisfied the statutory criteria for termination. The Commission determined that the changes to the organisation's structure and workforce were significant enough to render the certified agreement outdated and unsuitable for the current operational context. The Commission concluded that the application was valid and in the best interests of the employees and the organisation, leading to the termination of the Smile-A-Mile Fun Bus and Toy Library Incorporated Certified Agreement 1998. The decision was made with careful consideration of the evidence presented and the applicable legal framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established