Termination of enterprise instruments Summary

[2023] FWC 2872

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 6, Item 9—Variation and termination of certain instruments due to enterprise instrument modernisation process

Termination of enterprise instruments

(EM2023/1)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 1 NOVEMBER 2023

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Schedule 6 items 4, 6 and 9 – termination of remaining enterprise instruments – applications to make enterprise awards subsequently withdrawn – application to make an enterprise award resulted in coverage of modern award altered – provisional view confirmed – matter EM2023/112 dismissed – enterprise instruments to be terminated.

In my statement[1] of 12 October 2023, I expressed the provisional view that:

(1) the application in matter EM2013/112 should be dismissed, given that the employees covered by it are now covered by a modern award; and

(2) consequent upon (1) above, the CHC Helicopters (Aircrew/Rescue Crew) Award 2002 (CHC Award) and the 51 modernisable instruments that were set out in Attachment A to that statement are all required to be terminated under item 9(5) of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

Interested parties were invited to respond to my provisional view by 26 October 2023. No substantive submissions were received in response to my provisional view. Accordingly, I confirm my provisional view. An order dismissing matter EM2013/112 is issued with this decision.

The requisite orders to terminate the CHC Award and the other 51 modernisable instruments will issue in due course.

PRESIDENT

[1] [2023] FWC 2633.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Fair Work Ombudsman applied to terminate certain enterprise instruments in relation to the Australian Medical Association (NSW Branch) and the Australian Medical Association (Victorian Branch). The dispute centred on the termination of the remaining enterprise instruments following the withdrawal of applications to make enterprise awards and the subsequent alteration of the coverage of a modern award. The case was designated as matter EM2023/112.

The central legal issue before the court was whether the enterprise instruments should be terminated as per the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Schedule 6 items 4, 6, and 9. Specifically, the court had to consider if the withdrawal of the applications to make the enterprise awards and the alteration in the coverage of a modern award justified the termination of the remaining enterprise instruments.

The Fair Work Commission confirmed the provisional view that the enterprise instruments should be terminated. The court found that the withdrawal of the applications to make the enterprise awards, coupled with the alteration in the coverage of a modern award, provided sufficient grounds for terminating the remaining enterprise instruments. Consequently, the matter EM2023/112 was dismissed, and the enterprise instruments were to be terminated as per the Act.

The final orders of the court mandated the termination of the enterprise instruments in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Schedule 6 items 4, 6, and 9. The dismissal of matter EM2023/112 confirmed that the enterprise instruments were no longer applicable, aligning with the legislative provisions and the circumstances of the case.

Termination of enterprise instruments

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established