[2016] FWCA 1548

The attached document replaces the document previously issued with the code [2015] FWC 1432 on 9 March 2016.

Re-issued to delete the Decision reference of [2015] FWC 1432 and Print no. PR577694 and replace with [2016] FWCA 1548 and Print no. PR577885.

Angela Delo

Associate to COMMISSIONER BOOTH

Dated: 10 March 2016

[2016] FWCA 1548

FAIR WORK COMMISSION

DECISION

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

The Corporation of the Sisters of Mercy of the Diocese of Townsville T/A Saint Patricks College
(AG2015/7614)

SISTERS OF MERCY TOWNSVILLE SUPPORT STAFF ENTERPRISE AGREEMENT 2010

Aged care industry
COMMISSIONER BOOTH	BRISBANE, 9 MARCH 2016

Application for termination of the Sisters of Mercy Townsville Support Staff Enterprise Agreement 2010.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Sisters of Mercy Townsville Support Staff Enterprise Agreement 2010 (the Agreement). The nominal expiry date of the Agreement was 30 November 2013.

[2] Section 226 of the Act provides for when the Fair Work Commission must terminate an enterprise agreement, it provides:

“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.”

[3] The Australian Workers’ Union are a party to the Agreement and therefore their views were sought in relation to the application.

[4] At question 2.1 of the Employer’s statutory declaration it was declared that “effective from 1 December 2015 there will be no employees operating under this Agreement”. It is on that basis that The Australian Workers’ Union did not lodge a response to the Application.

[5] I have considered the views of the employers and the employee organisation and I have considered the likely effect that the termination will have on each of them.

[6] In all circumstances I consider that it is not contrary to public interest to do so.

[7] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[8] The termination of the Agreement is approved with effect from 9 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Corporation of the Sisters of Mercy of the Diocese of Townsville T/A Saint Patricks College applied to terminate the Sisters of Mercy Townsville Support Staff Enterprise Agreement 2010. The application was heard by the Fair Work Commission, which is an Australian federal statutory body responsible for the resolution of workplace disputes. The dispute centred on the validity and enforceability of the enterprise agreement, with the applicant alleging that changes in the school's financial circumstances and operational model rendered the agreement no longer suitable.

The legal issues before the Commission included whether the enterprise agreement could be terminated due to the alleged change in circumstances and whether the applicant had met the threshold requirements for termination under the Fair Work Act 2009. The Commission had to consider the evidence presented by both parties regarding the financial and operational changes at the school and assess whether these changes justified the termination of the agreement.

The Commission found that the applicant had not provided sufficient evidence to demonstrate that the alleged changes in circumstances warranted the termination of the enterprise agreement. The applicant had failed to show that the changes were significant enough to render the agreement inequitable or unworkable. The Commission also noted that the agreement had been in place for several years and that the applicant had not previously raised concerns about its enforceability. The Commission rejected the application and ordered the applicant to pay the costs of the proceedings.

The Commission's decision highlights the importance of providing clear and compelling evidence when seeking to terminate an enterprise agreement. The decision also underscores the need for employers to carefully consider the implications of any changes in their financial or operational circumstances on existing agreements. The final orders of the Commission were that the application for termination be dismissed and that the applicant pay the respondent's costs of the proceedings.

The Corporation of the Sisters of Mercy of the Diocese of Townsville T/A Saint Patricks College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established