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

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CaseChat Overview and Summary

In the recent matter of The Corporation of the Sisters of Mercy of the Diocese of Townsville T/A Saint Patricks College, the Fair Work Commission was called upon to decide on an application for the termination of the Sisters of Mercy Townsville Support Staff Enterprise Agreement 2010. The dispute arose between the employer, the Corporation of the Sisters of Mercy of the Diocese of Townsville, and the relevant union, which was advocating on behalf of the support staff employees. The crux of the matter centred on whether the enterprise agreement should be terminated due to changes in circumstances that purportedly rendered it obsolete or unworkable.

The legal issues that the Commission had to address included whether the application met the criteria for termination under the Fair Work Act 2009 and whether the changes in circumstances were significant enough to justify the termination of the enterprise agreement. Specifically, the Commission had to consider whether the changes in the workforce, the economic environment, and the operational requirements of the school warranted a departure from the existing agreement. The union argued that the application did not adequately demonstrate the necessity for termination, while the employer contended that the changes were substantial and warranted a new agreement.

In reaching its decision, the Commission carefully examined the evidence presented by both parties. It considered the extent to which the changes in the workforce and operational environment had impacted the ability to effectively manage the support staff. The Commission also assessed the employer's capacity to meet its obligations under the agreement and whether the changes had rendered the agreement unworkable. Ultimately, the Commission concluded that while some changes were evident, they did not rise to the level necessary to justify the termination of the existing agreement. The application was dismissed, and the Sisters of Mercy Townsville Support Staff Enterprise Agreement 2010 remained in effect.

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