The Women's Housing Association Inc

[2014] FWCA 1444

[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;

(c) an employee organisation 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.

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<Price code A, AC327389  PR548226>