Southern Volunteering (SA) Inc T/A Southern Volunteering

[2020] FWCA 4991

[2020] FWCA 4991

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Southern Volunteering (SA) Inc T/A Southern Volunteering
(AG2020/2684)

SOUTHERN VOLUNTEERING (SA) INC COLLECTIVE AGREEMENT 2007

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 16 SEPTEMBER 2020

Application for termination of the Southern Volunteering (SA) Inc Collective Workplace Agreement 2007.

[1] On 8 September 2020, Southern Volunteering (SA) Inc T/A Southern Volunteering (the Applicant) made an application pursuant to Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Southern Volunteering (SA) Inc Collective Workplace Agreement 2007 (the Agreement).

[2] On 11 September 2020, my Chambers corresponded with the Applicant and advised that although the form F28 application and accompanying declaration appeared to refer to an application made under Schedule 3 item 15 of the Transitional Act, Q2.1 of the form F28 (which requires the Applicant to tick either that the application is made under Schedule 3 item 15 or Schedule 3 item 16) had Schedule 3 item 16 selected.

[3] On 14 September 2020, an amended form F28 was provided with Q2.1 indicating that the application was being made under Schedule 3 item 15 of the Transitional Act. An amended declaration was also provided. I have exercised my discretion under s.586(a) of the Act to allow a correction to be made to the form F28 application. I have also determined to receive the amended declaration which provides more detail than the first.

[4] The effect of the Transitional Act is that a Schedule 3 item 15 application is dealt with as if it were made under Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act).

Relevant Legislation

[5] Sections 222 and 223 of the Act are relevant to this application.

[6] Sections 222 and 223 state:

“222 Application for the FWC's approval of a termination of an enterprise agreement

Application for approval

(1)  If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)  The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)  The application must be made:

(a)  within 14 days after the termination is agreed to; or

(b)  if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.

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.”

[7] The Agreement is a collective agreement-based transitional instrument with a nominal expiry date of 20 July 2012. The Agreement covers 4 employees.

[8] On 15 September 2020, additional information was sought from the Applicant in relation to the vote, the information provided to employees, the reason for termination and any disadvantage that may result from terminating the Agreement. On 16 September 2020, the Applicant provided additional information including the summary of information provided to employees, which provided as follows:

“The Employer proposes that any existing conditions contained in the Collective Agreement which are in excess of SCDS Award conditions will continue to apply to Employees if a vote is taken to terminate the Collective Agreement.

The Employer proposes to insert any conditions, which are in excess of the SCDS Award, into an Employee’s Contract of Employment. This will ensure that an Employee will be better off should the Collective Agreement be terminated.

The existing conditions, which are in excess of the Award and which will be inserted into an Employee’s Contract of Employment are as follows:

•  Paid Parental Leave,

•  Redundancy Pay,

•  Classification Levels,

…”

[9] The additional information also advised that 3 employees had cast valid votes and that all 3 employees had agreed to the termination of the Agreement.

[10] I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreement.

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

COMMISSIONER

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