South Australian Native Title Services Limited

[2019] FWCA 8520

[2019] FWCA 8520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

South Australian Native Title Services Limited
(AG2019/4486)

SOUTH AUSTRALIAN NATIVE TITLE SERVICES ENTERPRISE AGREEMENT 2017

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 17 DECEMBER 2019

Application for termination of the South Australian Native Title Services Enterprise Agreement 2017.

[1] This decision concerns an application by South Australian Native Title Services Limited (SANTS) pursuant to s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the South Australian Native Title Services Enterprise Agreement 2017 (the Agreement). The Agreement was approved by the Commission in July 2017. The Agreement commenced operation on 19 July 2017 and had a nominal expiry date of 30 June 2019. The Australian Municipal, Administrative, Clerical and Services Union (ASU) is also covered by the Agreement.

[2] A hearing by telephone was conducted in this matter on 17 December 2019. At the conclusion of that hearing I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

[3] The FW 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] The Application was accompanied by a statutory declaration of Mr Rory Somes, Industrial Relations Adviser for SANTS, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included considerations to the effect of the following:

•  The Agreement has passed its nominal expiry date;

•  There is a new enterprise agreement applicable at the workplace and that all but one employee is covered by that new enterprise agreement;

•  The Agreement is no longer relevant to the one employee not covered by the new enterprise agreement, as that employee is now a member of SANT’s executive whose employment will be covered by the Social, Community, Home Care & Disability Services Industry Award 2010;

•  The (previously) affected employee agrees with the proposed termination and no other employees will be affected by the termination; and

•  It would not be contrary to the public interest for the Agreement to be terminated and for the Award to apply to the employee and SANTS.

[5] Given the circumstances, SANTS is entitled to apply for the termination of the Agreement pursuant to s.225 of the FW Act.

[6] The Commission issued a notice of listing, which contained directions, on 3 December 2019. This was issued directly to SANTS and the ASU as a party covered by the Agreement. The directions included the requirement for SANTS to provide a copy of the notice of listing and directions to all employees covered by the Agreement. The directions also explained the nature of the application and invited employees, their representative(s) or organisation(s) to express a view about the matter including by raising any concerns directly with the Commission.

[7] The Commission did not receive any communications from any employee covered by the Agreement expressing concerns about this matter or otherwise wishing to be heard in relation to the application. Given this fact, the statutory declaration of Mr Somes and the position subsequently advanced by the ASU, I am satisfied that all relevant employees support the application.

[8] Ms Gail Dean of the ASU participated in the hearing conducted on 17 December 2019. The Union did not oppose the termination of the agreement.

[9] I accept that a valid application has been made. SANTS is eligible to apply for the Agreement’s termination and has done so after its nominal expiry date. Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the agreement and that it is appropriate in all of the circumstances, including having regard to the views of the employer, the ASU and the employees. It is in the interests of the parties, and not contrary to the public interest, that the Award apply within this workplace to the relevant employee. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[10] Given this determination, the termination date is a discretionary matter for the Commission under s.227 of the FW Act. It was suggested to me that the termination could take effect in the very near future as the relevant employee’s contract dealing with any consequences of the termination of the Agreement has already been prepared and agreed.

[11] The Agreement is terminated and the termination will take effect on and from 11:59 pm on 18 December 2019.

COMMISSIONER

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