The Karuna Hospice Service Limited Summary

[2015] FWCA 1231

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 15 Sch. 3—Termination of transitional instrument

The Karuna Hospice Service Limited T/A Karuna Hospice Services

(AG2015/1713)

KARUNA HOSPICE SERVICES EMPLOYEE COLLECTIVE

AGREEMENT

Health and welfare services

COMMISSIONER SIMPSON

BRISBANE, 20 FEBRUARY 2015

Application for termination of the Karuna Hospice Services Employee Collective Agreement.

[1] On 23 January 2015 The Karuna Hospice Service Limited T/A Karuna Hospice

Services (“the Employer”) filed an application pursuant to Item 15, Schedule 3 of the Fair

Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”)

to terminate the Karuna Hospice Services Employee Collective Agreement (“the

Agreement”).

[2] As the Agreement is a collective agreement-based transitional instrument (being a

preserved collective State Agreement under the Workplace Relations Act 1996) which has

passed its nominal expiry date, the appropriate provision under which to terminate the

agreement is Item 16, Schedule 3 of the TPCA Act.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-

4 of the FW Act applies to applications to terminate collective agreement-based transitional

instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a

collective agreement-based transitional instruments and its nominal expiry date has passed.

[4] Section 226 of the Act states that:

“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:

[2015] FWCA 1231

(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.”

[5] Kay Powell Provided a provided a statutory declaration attesting to the process

undertaken by the Employer when requesting that the Agreement be terminated.

[6] The Employer also provided letter dated 18 February 2015 outlining the benefits of

terminating the Agreement. The letter is signed by the majority of employees who are

covered by the Agreement.

[7] In having regard to the requirements of s.226 of the FW Act and based on the material

that is before me, I am satisfied that:

 it is not contrary to the public interest to terminate the Agreement; and
 it is appropriate to terminate the agreement taking into account all the circumstances.
[8] In accordance with s.227 of the FW Act, the termination will come into effect today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Karuna Hospice Service Limited T/A Karuna Hospice Services applied to terminate the Karuna Hospice Services Employee Collective Agreement. The application was heard by Commissioner Simpson in Brisbane on 20 February 2015. The agreement in question was a collective agreement-based transitional instrument, preserved under the Workplace Relations Act 1996, which had passed its nominal expiry date. The application was filed under Item 15, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The legal issue before the court was whether the termination of the agreement was appropriate and not contrary to the public interest. The court considered the views of the employees, employers, and employee organisations covered by the agreement, as well as the circumstances of those parties and the likely effect of the termination on each of them. The employer provided a statutory declaration attesting to the process undertaken when requesting the termination and a letter signed by the majority of employees covered by the agreement outlining the benefits of terminating the agreement.

The court found that the termination of the agreement was not contrary to the public interest and was appropriate to terminate taking into account all the circumstances. The court relied on the views of the employees, employers, and employee organisations, as well as the benefits outlined in the letter provided by the employer. The court also noted that the agreement had passed its nominal expiry date and that the appropriate provision under which to terminate the agreement was Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The court terminated the Karuna Hospice Services Employee Collective Agreement in accordance with s.227 of the Fair Work Act, effective from the date of the decision.

The Karuna Hospice Service Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

(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