The Australian Outward Bound Foundation

[2021] FWCA 892

[2021] FWCA 892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Australian Outward Bound Foundation
(AG2021/289)

OUTWARD BOUND COLLECTIVE AGREEMENT 2007 - 2012

Educational services
DEPUTY PRESIDENT DEAN	SYDNEY, 1 MARCH 2021

Application for termination of the Outward Bound Collective Agreement 2007 - 2012.

[1] On 11 February 2021 The Australian Outward Bound Foundation (Applicant) made an application to terminate the Outward Bound Collective Agreement 2007 - 2012 (the Agreement) under s.225 of the Fair Work Act 2009.

[2] The Agreement has passed its nominal expiry date in 2012 and does not cover any employee organisations.

[3] The provisions relevant to the application are contained in sections 225, 226 and 227 of the Act:

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] On 12 February 2021, the Applicant was directed to circulate my directions to the affected employees which set out an overview of the application and requested that any persons who wished to oppose the application to advise my chambers by 26 February 2021.

[5] No opposition to the application has been received from or on behalf of any employees. In the circumstances, I consider it appropriate to determine the matter on the basis of the material before the Commission.

[6] The application is supported by a statutory declaration by Ms Loren Miller, Acting CEO of the Applicant. Ms Miller states that the Agreement was drafted and approved under the Workplace Relations Act and its terms and entitlements are not up to date with the current legislation. Ms Miller said that the Applicant has been significantly impacted by the 2019 bushfires and Coronavirus in 2020. As a result, there has been a need for the Applicant to restructure its business model to enable long term viability of its operations. However, the Agreement does not allow the Applicant the operational ability or efficiencies to cope with complex program scheduling.

[7] If the Agreement were terminated, Ms Miller said that employees would be provided with individual employment contracts and would be remunerated at rates above the Agreement and the Miscellaneous Workers Award 2020. According to Ms Miller, employees were provided with the new proposed remuneration model and templates of the proposed individual employment contracts. The feedback received from the employees was positive and no concerns were raised that the termination of the Agreement will have any negative impact on them.

[8] Having considered the material before me, I am satisfied the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met. Accordingly, the Agreement is terminated.

[9] The termination will come into effect from 1 March 2021.

DEPUTY PRESIDENT

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