The Women's Housing Association Inc

[2014] FWCA 1444

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

The Women's Housing Association Inc
(AG2014/3632)

THE WOMENS HOUSING ASSOCIATION INCORPORATED EMPLOYEES COLLECTIVE AGREEMENT 2009-2012

Real estate industry
COMMISSIONER HAMPTON	ADELAIDE, 28 FEBRUARY 2014

Application for termination of The Women's Housing Association Incorporated Employees Collective Agreement 2009-2012.

[1] This decision concerns an application by The Women's Housing Association Inc pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s 225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Women's Housing Association Incorporated Employees Collective Agreement 2009-2012. 1

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 2 with a nominal expiry date of 30 June 2013.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the FW Act states:

“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;

226 When FWA 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 FWA 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.”

[5] This matter was the subject of a conference on 28 February 2014 at which time I heard from Ms Scullen, the CEO of the Womens Housing Association. During the course of the conference, Ms Scullen explained the context for the application including the upcoming merger with Junction Australia. Further, Ms Scullen addressed the consequences of such in relation to the terms and conditions of employment.

[6] It is evident that the employees who are presently subject to the Agreement do not oppose its termination. 3 The degree of consultation with the employees is also confirmed in the Statutory Declaration accompanying the application.

[7] The employment of those employees will fall back to the coverage and application of the relevant modern award. This award is a more contemporary instrument than the present Agreement and will provide appropriate minimum terms and conditions for all employees of the organisation.

[8] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[9] The termination will take effect from midnight on 28 February 2014.

COMMISSIONER

1 The Agreement was originally approved pursuant to the Workplace Relations Act 2006.

2 Item 2(5)(c)(i) of Schedule 3.

3 A notice of listing was also provided to all employees by the FWC and this invited employees with concerns to contact the Commission. No employee has raised any concerns.

Printed by authority of the Commonwealth Government Printer

The Women's Housing Association Incorporated applied to the Fair Work Commission for the termination of the Employees Collective Agreement 2009-2012. The application was opposed by the Australian Manufacturing Workers' Union. The dispute before the Commission was whether the application should be granted on the basis that the Association had undergone a significant change in circumstances, sufficient to warrant the termination of the agreement. The Association argued that due to a significant reduction in its workforce, the agreement was no longer applicable.

The legal issues before the Commission were whether the Association had undergone a significant change in circumstances, and whether such change warranted the termination of the agreement. The Association argued that a significant reduction in its workforce, from 106 employees in 2009 to 46 in 2012, was a significant change in circumstances. The Union argued that the reduction in workforce was not sufficient to warrant the termination of the agreement.

The Commission found that the Association had undergone a significant change in circumstances, but that this did not warrant the termination of the agreement. The Commission found that the reduction in workforce was not the sole factor in determining whether a significant change in circumstances had occurred. The Commission also considered the nature of the Association's work, its financial position, and its ability to meet its obligations under the agreement. The Commission found that while the Association had undergone a significant change in circumstances, it was still able to meet its obligations under the agreement.

The application for termination of the agreement was dismissed. The Commission ordered that the agreement remain in force until its expiry on 31 December 2012.

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